Angel Notes Tax

LABORLAW1REVIEWER/NOTES(VELOSO)

GENERALCONCEPTS LABORLAW Includes all rules of law governing the conditions under which persons may work under the control of other persons called employers Asaconcept,itisabodyofrulesandprincipleswhichgovernsthe relationsbetweenlaborandmanagementinthecollective LABORSTANDARDS Prescribe the terms and conditions of employment as affecting wages or monetary benefits, hours of work, cost of living allowances, and occupational health, safety, and welfare of the workers LABORRELATIONS This is used to denote all matters arising out of employer employeerelationshipinvolvingtheconcertedactiononthepart of the workers which is usually related with right to self organization,collectivebargaining,andnegotiationprocesses SOCIALLEGISLATION Law governing the employeremployee relationship while the latterisnotatworkduetohazardsarisingfromhisemployment Itisdesignedtoupliftandprotectthewelfareoftheworkerand his family because of the hazards beyond the control which immobilizehimfromworking SOCIALJUSTICECLAUSEINTHECONSTITUTIONINRELATIONTOHOWIT ISDEFINEDINTHEPRIMECASEOFCALALANGV.WILLIAMS Socialjusticeisneithercommunism,nordespotism,noratomism, noranarchy,butthehumanizationoflawsandtheequalizationof the social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Socialjusticemeansthepromotionofthewelfareofthepeople, theadoptionbythegovernmentofmeasurescalculatedtoinsure economic stability of all the elements of society through the maintenance of proper social and economic equilibrium in the interrelations of members legally justifiable, or extra constitutionally, through the exercise of powers underlying the existence of all governments, on the time honored principle of saluspopuliestsupremalex
TAXONOMYOFLABORLAWS 1. Protectivelegislations 2. Welfareorsociallegislations 3. Diplomaticlegislations 4. Administrativelegislations 5. Laborrelationslegislations 6. Laborstandardslegislations WHAT IS THE DIFFERENCE BETWEEN LABOR LAW AND SOCIAL LEGISLATION? LABORLAW SOCIALLEGISLATIONS More direct in application as it Governstheeffectsofemployment directly affects actual employment suchascompensationforinjuriesor suchaswages death Designedtomeetthedailyneedsof Longrangebenefits aworker Covers employment for profit and Coversemploymentforgainornon gain profit Affectstheworkoftheemployee Affectsthelifeoftheemployee Benefitsarepaidbytheemployer Benefits are paid by government agenciesadministeringtheprogram suchastheECC WHATISTHEPURPOSEOFLABORLEGISLATION?
MA.ANGELAAGUINALDO ATENEOLAW2010

Intended to protect the worker from the mighty and to correct the injustices that are inherent in employeremployee relationships 5. 6. 7. 8. 9. Section3.TheStateshallaffordfullprotectiontolabor,localandoverseas, organizedandunorganized,andpromotefullemploymentandequalityof employmentopportunitiesforall. It shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations, and peaceful concerted activities, including therighttostrikeinaccordancewithlaw.Theyshallbeentitledtosecurity of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decisionmaking processes affecting their rights andbenefitsasmaybeprovidedbylaw. 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 compliancetherewithtofosterindustrialpeace. 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 expansionandgrowth. STANDARDOFLIVING Defined as the social and economic concept which deals with what facilities are needed by an employee necessary to assure himselfandhisfamilyalifeworthyofhumandignity COSTOFLIVING Socialserviceclause Fullemploymentclause Freedomfrompovertyclause Freedomofassociationclause Dueprocessandequalprotectionclauses
SOURCESOFLABORLAWS Itmaybeclassifiedintotwotypesprimaryandauxiliary Primary o ThePhilippineconstitution o LegislationspassedbyCongress o DecisionsoftheSC o IRRoftheDOLE o DecisionsofquasijudicialbodiesliketheNLRC Auxiliary o OpinionsoftheSecretaryofLaborandEmployment,and Justice o Reports, debates, hearings made and conducted by Congress o Laborlawreviews o Laborlawandsociallegislationstextbooks o Opinionsoflegalluminaries o Foreignlawsanddecisions However, this can just simply be interpreted as a list of the following o Constitution o Statutes o Courtdecisions o OpinionsoftheSecretaries o IRR o InterpretationsoftheDOLE/NLRC LEGALBASESFORENACTMENTOFLABORANDSOCIALLEGISLATION 1. Policepowerofthestate 2. Socialjusticeclause 3. Protectiontolaborclause 4. Doctrineofincorporationclause

Definedasaneconomicandsocialconceptwhichdealswithhow much facilities that an employee could cost in order to maintain forhimselfandhisfamilyhisstandardoflivingworthyofhuman dignity PLANEOFDIGNITY Leveluponwhichanemployeeactuallylives This represents his actual expenditures and his actual consumptionofgoodsandservices LABORCODEOFTHEPHILIPPINES GENERALPROVISIONS Art.1.NameofDecree.ThisDecreeshallbeknownasthe"LaborCodeof thePhilippines". BASICFEATURESOFTHELABORCODE 1. Emancipationoflaborrelations 2. Transformationofworkmenscompensation 3. Abolitionofthepermitsystem 4. Placingofgovernmentcorporationsunderthecivilservice 5. Creation of the Overseas Employment Development Board and NationalSeamenBoard 6. Incorporationofagrarianreform 7. Updatingofsocialandlaborlegislations Art.2.Dateofeffectivity.ThisCodeshalltakeeffectsix(6)monthsafter itspromulgation. *TheLaborCodewasdated11May1974andittookeffect11November 1974. *Itisnottruethatitwasimplementedlast11November1974forbythat time, there was no implementing rules and regulations yet. The law published is different from what was really passed, considering its many amendments. HISTORYOFLABORLEGISLATIONINTHEPHILIPPINES 1. Spanishoccupation a. TheOldCivilCode,Articles15831587 b. CodeofCommerce,Article283302 2. Americanoccupation a. ActNo.702 b. ChineseRegistryAct c. EmployersLiabilityAct d. Act No. 2549prohibiting compulsory purchase of merchandisebyandmerepaymentbychitsortokensto workers e. WomanandChildLaborLaw f. WorkmensCompensationActof1927 g. AntiSlaveryLaw h. ActsonPaymentofWages i. PrivateEmploymentAgencyLaw 3. TimeofPresidentQuezon a. CA103,creationoftheIndustrialRelationsCourt b. EightHourLaborLaw c. IndustrialSafetyLaw d. UnionRegistrationAct e. CA647,grantingwomentotakeleavefromwork 4. PhilippineRepublic a. MinimumWageLaw b. TerminationPayLaw c. WomenandChildrenLaborLaw d. IndustrialPeaceAct e. BlueSundayAct f. PeacefulPicketingLaw g. AntiScabLaw h. SocialSecurityLaw i. AgriculturalTenancyLaw
5. j. AgriculturalLandReformCode MartialLawtothepresent a. EmancipationofTenantsLaw b. PD442orLCP c. Antidiscriminationofwomeninlabor d. WageRationalizationLaw e. Etc.
3. 4.
Art. 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 workersandemployers.TheStateshallassuretherightsofworkerstoself organization, collective bargaining, security of tenure, and just and humaneconditionsofwork.
5. 6. 7. 8.
PURPOSEFORAFFORDINGPROTECTIONTOLABOR PALv.Santos:underthepolicyofsocialjustice,thelawbendsto accommodate the interests of the working class on the human justification that those with less privileges in life should have moreprivilegesinlaw INANUTSHELL,THEFOLLOWINGISTHESTATEPOLICY Affordfullprotectiontolabor Promotefullemployment o Full employment means that those who are willing to workattheprevailingratesofpayareabletofindwork withoutunduedifficulty Equalityofemploymentopportunitiesforall Assure workers rights to selforganization, collective bargaining and negotiations, security of tenure, and just and humane conditionsofwork ANDTHEFOLLOWINGARETHERIGHTSOFTHEWORKER 1. Righttoselforganization 2. Righttocollectivebargaining
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Right to collective negotiations (*new concept introduced for thoseinthegovernmentorpublicsector) Right to engage in concerted peaceful activities (*forms of free expression guaranteed by the Constitution), which include the right to strike in accordance with law (*strike: temporary stoppageofworkbytheconcertedactionofemployeesasaresult of any industrial or work dispute designed to compel the employertoaccedetocertaindemandsoftheemployees) Securityoftenure Justandhumaneconditionsofwork Livingwage Right to participate in policy and decisionmaking involving their rightsandbenefits Righttojustshareinthefruitsofproduction
Trivia:TheoriginalprovisionintheLCdidn'tincludetherighttobargain collectively for there is no right to strike provided for. This was enacted during the Martial Law. If there is no provision for the right to strike, wheredoesthisstem?FromSection3,Article13oftheConstitution. BUT THE FOLLOWING ARE NOT PROVIDED FOR IN THE SUBJECT PROVISION: 1. Participatory rightright to participate in policy and decision making involving rights and benefits (this is a management prerogativeandwhichisnotamatterthatcanbecodetermined bytheemployersandemployees) a. PAL v. NLRC: Any company rule which is not made subjecttodiscussionbetweenemployerandemployeeis notavalidcompanyrule.Itcannotbeusedasabasisfor acauseofaction. b. This right has been mentioned in Article 211 (a)(g)to ensure the participation of workers in decision and policymakingprocessesaffectingtheirrights,duties,and welfare. This has also been mentioned in Article 255

which tackles exclusive bargaining representation and workersparticipatinginpolicyanddecisionmaking Principle of shared responsibility between employers and employeesthiscanbefoundinArticle277(g) PeacefulconcertedactivitiesthiscanbefoundinArticle263(b) Right to strikethis can be found in Article 263(b)(c)(d)(e)(f). Pleasenotehoweverthatthismustbeinaccordancewithlaw. Voluntary modes of settling disputeArticle 211(a, sub.a and e) which mentions that voluntary arbitration is preferred but if you read other provisions, it is still actually a case of compulsory arbitration a. TherealcaseofvoluntaryarbitrationisinArticle262 Livingwageitisimportanttoimplementthis(Article123) Regulation of relations between employer and employee/Balancingofinterestsdoctrinethisisimplementedin Article263(c)(f)(g),283,277(b),etc.
2. 3. 4. 5.
In carrying out and interpreting the law, including its implementing rules and regulations, the workingmans welfare shouldbetheprimordialinterestfurthered Eastern Shipping case: Those who have less in life should have moreinlaw
6. 7.
Art. 4. Construction in favor of labor. All doubts in the implementation and interpretation of the provisions of this Code, including its implementingrulesandregulations,shallberesolvedinfavoroflabor.
THISRULECANBERAISEDONMATTERSOFEVIDENCE TripleAv.NLRC(2003),VicenteSyv.NLRC(2003):withrespectto rules on evidence and there is doubt, you resolve it in favor of labor How can this be reconciled with the subject provision when it doesn't involve interpretation of labor provisions but instead of rulesofcourt? If the subject matter is covered by the Labor Code, and there is anydoubtwithrespecttotheimplementationorinterpretationof labor provisions, then the issue should be resolved in favor of laborevenifitaffectsissuesonrulesofevidence This is because one of the areas of doubt includes evidence becauseitstemsfromaclaimundertheLC BURDENOFPROOF Withrespecttoburdenofproofonlaborstandards(e.gminimum wagepayment,separationpay),underJimenezcase,itisstillthe employer who has the burden of proof to show payment and compliance. Ontheotherhand,overtimepayclaims,itisincumbentuponthe employee that he has rendered overtime work except if the subjectemployeeisamigrantworker. Under Articles 282 and 283, the burden of proof in illegal dismissalcasesisupontheemployer CLASSIFICATIONOFWORKERS,ACCORDINGTORA6715 1. Managerial employeesone who is vested with powers or prerogatives to lay down and execute management policies
AFFIRMANCEOFTHECIVILCODEPROVISION The abovementioned provision reaffirms Article 1402 of the CC which states that all labor legislations and all labor contracts shallbeconstruedinfavorofthesafetyanddecentlivingforthe laborer In all contractual, property, or other relations, when one of the partiesisatadisadvantageonaccountofhismoraldependence, ignorance, indigence, mental weakness, tender age or other handicaps,thecourtmustbevigilantforhisprotection APPLICABILITYOFTHERULEOFCONSTRUCTIONINFAVOROFLABOR Theruleonconstructiononlyapplieswhenthereisdoubt PURPOSEOFTHELAW

and/ortohire,transfer,suspend,layoff,recall,discharge,assign ordisciplineemployees. 2. Supervisory employeesthose who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in naturebutrequirestheuseofindependentjudgment. 3. Rankandfileemployeesemployeesnotfallingwithinanyofthe abovedefinitions
1. 2.
Quasilegislative:IRR Quasijudicial: procedural rules on quasijudicial functions (EasternShippingLinescase) IRRhavetheforceandeffectoflawexceptadvisoryopinions
Art. 5. Rules and regulations. The Department of Labor and other governmentagencieschargedwiththeadministrationandenforcementof thisCodeoranyofitspartsshallpromulgatethenecessaryimplementing rules and regulations. Such rules and regulations shall become effective fifteen (15) days after announcement of their adoption in newspapers of generalcirculation.
EXTENTANDLIMITSOFRULEMAKINGPOWER Regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law and for the sole purpose of carrying into effect its general provisions Bysuchregulations,thelawitselfcannotbeextended Remember Administrative law. Administrative rules and regulationsmustalsobepublishedifitspurposeistoenforceor implementexistinglawpursuanttoavaliddelegation.However, ifitspurposeisonlyinternalinnature,thenthereisnoneedfor publicationforittobeeffective. Art.6.Applicability.Allrightsandbenefitsgrantedtoworkersunderthis Codeshall,exceptasmayotherwisebeprovidedherein,applyaliketoall workers, whether agricultural or nonagricultural. (As amended by PresidentialDecreeNo.570A,November1,1974) WORKER LaborstandardbenefitsareapplicabletoALLworkers It embraces even nonemployees like learners and apprentices (please note that even being not yet employees, they enjoy a minimumlaborstandardbenefits ChapterIII HANDICAPPEDWORKERS Art. 78. Definition. Handicapped workers are those whose earning capacityisimpairedbyageorphysicalormentaldeficiencyorinjury.
LAWSONEFFECTIVITY 1. Laws shall take effect 15 days following the completion of their publicationintheOGunlessitisotherwiseprovided 2. Inadditiontoanyotherrequirementprovidedbylawwhichisnot inconsistentwithEO292,eachruleshallbecomeeffective15days fromthedateoffilingasaboveprovidedunlessadifferentdateis provided for by the law, or specified in the rule in cases of imminent danger to public health, safety and welfare, the existence of which must be expressed in a statement accompanying the rules. The agency shall take appropriate measures to make emergency rules known to persons who may beaffectedbythem.(Chapter2,Book7,AdministrativeCode) *ADVISORYOPINIONSissuedbyadministrativeagenciesonlyhaveadvisory effectsbecauseonlythecourtshavethepowertointerpretwhatthelaw means. ADMINISTRATIVE AGENCIES IN REGULATIONSHAVETWOPOWERS IMPLEMENTING RULES AND

Art.79.Whenemployable.Handicappedworkersmaybeemployedwhen their employment is necessary to prevent curtailment of employment opportunitiesandwhenitdoesnotcreateunfaircompetitioninlaborcosts orimpairorlowerworkingstandards. Art. 80. Employment agreement. Any employer who employs handicapped workers shall enter into an employment agreement with them,whichagreementshallinclude: 1. The names and addresses of the handicapped workers to be employed; 2. The rate to be paid the handicapped workers which shall not be less than seventy five (75%) percent of the applicable legal minimum wage; 3. The duration of employment period; and 4. Theworktobeperformedbyhandicappedworkers. TheemploymentagreementshallbesubjecttoinspectionbytheSecretary ofLabororhisdulyauthorizedrepresentative. Art.81.Eligibilityforapprenticeship.Subjecttotheappropriateprovisions ofthisCode,handicappedworkersmaybehiredasapprenticesorlearners if their handicap is not such as to effectively impede the performance of joboperationsintheparticularoccupationsforwhichtheyarehired. *ahandicappedworkerisconsideredanemployee WHOISANEMPLOYEE? SeeBustamantecase Article212definesonestoincludeanypersonintheemployofan employer. The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall includeanyindividualwhoseworkhasceasedasaresultoforin connection with any current labor dispute or because of any unfairlaborpracticeifhehasnotobtainedanyothersubstantially equivalentandregularemployment. Note:
There is conflict between this and Article 279 which says, An employeewhoisunjustlydismissedfromworkshallbeentitledto reinstatementwithoutlossofseniorityrightsandotherprivileges andtohisfullbackwages,inclusiveofallowances,andtohisother benefitsortheirmonetaryequivalentcomputedfromthetimehis compensationwaswithheldfromhimuptothetimeofhisactual reinstatement. According to the Bustamante case, even if the dismissed employeefindsemploymentelsewhere,thereisstillanemployer employee relationship and the period to base backwages from continuestorun.
EMPLOYEREMPLOYEERELATIONSHIP Proofofemploymentrelationisoffirstimportance,forthereason that the existence of the employeremployee relationship is the jurisdictionalfoundationforacompensationclaim COMMENCEMENTOFANEMPLOYEREMPLOYEERELATIONSHIP The relationship is created by an employment contract, whether expressorimplied FOURFOLDTEST(INDICIAOFDETERMINATION) 1. Hiringmanner of selection and engagement of the putative employee a. There are instances however that even though there is no hiring, there is EER. An example is laboronly contracting. Thereislaborcontractinginacabosystem.Thecabois contractedbytheboatowner.Thecabogetsthebulkof

the payment and the workers gets peanuts. The cabo doesn't have substantive capital nor sufficient tools. By fictionoflaw,thecaboisconsideredonlyanagent.The boatownerisconsideredbylawtobeanemployer. Withrespecttotaxiorjeepneydriversunderaboundary system,theSChasconsistentlyruledthatthedriverisan employeebutthenagain,thedriveristheonepayingthe ownerofthejeeportaxi.TheSCfailedtoconsideritas rentals. 2. 3. Firingpowertodismiss Paymentofwages a. Inacase,abusdriverpaidincommissionbasis(May20, 2004) is an employee. This follows definition of wage underArticle97(f). "Wage" paid to any employee shall mean the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a writtenorunwrittencontractofemploymentforworkdoneorto bedone,orforservicesrenderedortoberenderedandincludes thefairandreasonablevalue,asdeterminedbytheSecretaryof Labor and Employment, of board, lodging, or other facilities customarilyfurnishedbytheemployertotheemployee."Fairand reasonablevalue"shallnotincludeanyprofittotheemployer,or toanypersonaffiliatedwiththeemployer. *ThisdefinitionnotmeanttodefineorestablishanEER. 4. But peculiarly, 8 days after this case (Abante v. La Madrid, May 28, 2004), a salesman paid in commission basisofhistotalsalesisnotanemployee. c. This is conflicting case doctrines. If asked, use the Grepalifedoctrineifpurelycommissionbasisassalary, thenheisnotanemployee.Ifonlyapartofthesalary, thenconsideredasanemployee.(Grepalifev.Judico) Controlpowertocontroltheemployeesconduct a. Wagesisdifferentfromcontrol.Ifyouarepaidwages,it doesn'tnecessarilymeanthatthereiscontrol. b. Ifyoutalkaboutcontrol,dealwithmeansandresult.If thereiscontroloverresult,thennoEER.Ifovermeans only,thereisnocontrol. b.
BADGESOFCONTROL 1. Abantev.LaMadrid,May2004rulingAbantewasnotrequired toreporttotheofficeandsubmitreportsonhisactivities.Hewas notevenrequiredtoexercisesalesactivitiesinaparticularareain Mindanao. His selling activities didn't have supervision or guidancefromthecompany.Hewasalsoleftalonetoemployhis own sales and marketing strategies. This together with many othercircumstances,Abanteisnotanemployee. 2. Insular Life Company casenot every form of control over the conductofapartyhireddoesn'tresulttoanEER.Methodswhich wishtoaddressboththemeansandresultoftheworkestablishes EER. 3. Payment by result is an indication that the worker is not an employee.Ordinarily,thiscomesintheformofcommission. 4. ThreeGrepalifecases a. Grepalife v. Judicoif the individual is paid salary then he is considered an employee. If the individual is paid purely on commission basis, then he not considered as anemployee.

Grepalife v. NLRC (1987)an individual may not be considered as an employee if he doesn't even have a licensetosellinsurancepolicies. c. Grepalife v. NLRChaving a license or not to sell insurance policies is not controlling to determine whetheranindividualisanemployeeornot.TheEERis under the purview of the Labor Code and not the InsuranceCode. Notethefollowing: Article243ontherighttoselforganization ART. 243. Coverage and employees right to selforganization. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions,whetheroperatingforprofitornot,shallhavetherightto selforganization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, selfemployed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. (As amended by BatasPambansaBilang70,May1,1980) Even if one maybe considered as an employee of the employer, the right to selforganization doesn't follow automaticallyespeciallyiftheemployeecanbeclassified asfollowsAmbulant,intermittentanditinerantworkers, selfemployed people, rural workers and those without anydefiniteemployers Itisaquestionoffacttoaskwhoanemployeeis Thecontroltestassumesprimacyintheoverallconsideration Under this test, an employment relation obtains where work is performedorservicesrenderedunderthecontrolandsupervision ofthepartycontractingthework,notonlyastotheresultofthe workbutalsoastothemanneranddetailsoftheperformance o b. Notehowever,noteveryformofcontroldeterminesanemployer employee relationship. A demarcation line should be drawn between: o Rulesthatmerelyserveasguidelineswhichonlypromote theresult o Rules that fix the methodology and bind or restrict the partyhiredtouseofsuchmeansormethodsthiskind of rules has the effect of establishing an employee employerrelationship
QUESTIONOFFACT:WHOANEMPLOYEEIS;EER:QUESTIONOFLAW LookattheprovisionsofArticle106(laboronlycontracting),138 (womenworkersinnightclubs,etc.),homeworkers The following become employees by operation of laweven if theydon'thavethepowersprovidedforbythetests Art.106.Contractororsubcontractor.Wheneveranemployerentersintoa contract with another person for the performance of the formers work, the employees of the contractor and of the latters subcontractor, if any, shallbepaidinaccordancewiththeprovisionsofthisCode. Intheeventthatthecontractororsubcontractorfailstopaythewagesof hisemployeesinaccordancewiththisCode,theemployershallbejointly andseverallyliablewithhiscontractororsubcontractortosuchemployees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. TheSecretaryofLaborandEmploymentmay,byappropriateregulations, restrict or prohibit the contractingout of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he maymakeappropriatedistinctionsbetweenlaboronlycontractingandjob contractingaswellasdifferentiationswithinthesetypesofcontractingand determine who among the parties involved shall be considered the
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employer for purposes of this Code, to prevent any violation or circumventionofanyprovisionofthisCode. Thereis"laboronly"contractingwherethepersonsupplyingworkerstoan employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agentoftheemployerwhoshallberesponsibletotheworkersinthesame mannerandextentasifthelatterweredirectlyemployedbyhim. Art. 138. Classification of certain women workers. Any woman who is permittedorsufferedtowork,withorwithoutcompensation,inanynight club, cocktail lounge, massage clinic, bar or similar establishments under the effective control or supervision of the employer for a substantial periodoftimeasdeterminedbytheSecretaryofLaborandEmployment, shallbeconsideredasanemployeeofsuchestablishmentforpurposesof laborandsociallegislation. Art. 155. Distribution of homework. For purposes of this Chapter, the "employer"ofhomeworkersincludesanyperson,naturalorartificialwho, forhisaccountorbenefit,oronbehalfofanypersonresidingoutsidethe country, directly or indirectly, or through an employee, agent contractor, subcontractororanyotherperson: 1. Delivers,orcausestobedelivered,anygoods,articlesormaterialsto be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his directions; or Sellsanygoods,articlesormaterialstobeprocessedorfabricatedin or about a home and then rebuys them after such processing or fabrication,eitherbyhimselforthroughsomeotherperson. SECONDARYTESTSOFEMPLOYEREMPLOYEERELATIONSHIP 1. SSS 2. PAGIBIGorGSIS 3. Insurancefund 4. Withholdingtaxagent th 5. Payment of 13 month payyou in effect admit one is an th employeeifyouadmitthatyoupaythem13 monthpay TERMINATIONOFEMPLOYEREMPLOYEERELATIONSHIP An employer may not terminate the services of an employee absentanyjustorauthorizedcause EXAMPLESOFTHEEXISTENCEOFEMPLOYEREMPLOYEERELATIONSHIP 1. There is EER between resident physicians and the training hospitals,unless: a. Thereisatrainingagreementbetweenthem b. The training program is duly accredited or approved by theappropriategovernmentagency 2. Lawyersasinhousecounselsofcompanies 3. Professors in a universitythe university practically exercises an effective control and supervision over the work of professors which includes what subjects to be taught, when to be taught, and where to be taught. They also receive compensation from the university and when they fail to perform, they can be dismissed. 4. Jeepney drivers under a boundary systemthe jeepney owner stillexercisescontrolandsupervisionoverthedriverbyseeingto it that he negotiates the route prescribed by the government agency 5. Tailors, cutters, etc. are considered employees if supervised or placedunderthemanagementofanother 6. Production assistants in ABSCBN are considered employees and arenottalents(ABSCBNv.Nazareno)
2.
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7. Crewmemberswhoweredirectlyhiredtoworkfornnumberof months and they were paid part of the proceeds. (Poseidon fishing,2006) Funeral supervisors prohibited from working in other funeral serviceprovidersareemployees(theelementofcontrolwasused todeterminethatthesupervisorsareemployees) Acaretakerbarberwasconsideredasanemployeeandnotasan industrial partner. An industrial partner is not subject to the power of control, which wasn't the case with the barbers, who were otherwise under the control of the owner of the barber shop. 4. 5. Medicalconsultantsnotemployees Crew members involved in deepsea fishingthe master of the vessel would be paid part of the proceeds of the catch. The owner of the vessel would take care of the needed gas, oil, and basicnecessities.(Pajarillocase,1966ruling)(*Importanttolook attheelementofcontroltoreconcilethedifferentrulingsonthe same)
8.
9.
EXAMPLES WHERE THERE DOESN'T EXIST ANY EMPLOYEREMPLOYEE RELATIONSHIP 1. Stevedoresashippingcompanyusuallycontractsoutwithother companies offering arrastre services as it is not customarily engaged in stevedoring activities. Thus, stevedoring employees arenotemployedbytheshippingcompany. 2. Caddies of golf clubscaddies submit themselves to the supervision of their conduct to the Golf Club while enjoying the pursuit of their occupation within the premises. However, they don't observe working hours and are free to leave anytime they please or stay away for as long as they like. With or without breach of any club rules, they can be barred from the premises. TheseconsiderationsnegatetheexistenceofanyEER. 3. Crew members are not employees of boat owner, relationship assumesajointventure a. Crewmembersdon'treceiveanycompensation b. Theydivideorshareinthefishcatch c. They venture into sea regardless of instructions of the boatownerundertheirbestjudgmentonhowlongand wheretogofishing d. Crewmembersjointheexpeditionuponinvitationofthe ship master even without the knowledge of the ship owner
PAYMENTBYPIECERATEORPAKYAW;TWOSCHOOLSOFTHOUGHT Paymentbypieceorpakyawisoneandthesame.Oneschoolof thought says that one is not an employee if paid by payment by piecerateorpakyaw. Paymentbypiecerateorpakyawaredifferentconcepts.Ifoneis paid by piecerate, then he is an employee. If paid by pakyaw, thenheisnotanemployee. APPLICABILITY|NONAPPLICABILITY By express provisions of the Constitution and Labor Code, terms and conditions of employment of all government employees, including employees of governmentowned or controlled corporations with original charters shall be governed by the civil servicelaws,rulesandregulations Thetermgovernmentownedandcontrolledshouldbereadin the light of Opinion No. 62 of the Secretary of Justice, series of 1976there is a difference between corporations organized pursuanttoalegislativecharteroraspeciallawandcorporations notdirectlycharteredorcreatedbyspeciallawbutwereacquired ortakenoverbycorporationscreatedunderspeciallaws o A bit of history. This Opinion was voided in the case of NHAv.Juco,theCourtstatingthenthatitdoesn'tmakea difference if the corporation was created under special law or if it is just a subsidiary, bought by a corporation created by special law. Even so, the Opinion was resurrectedinthecaseofNationalServiceCorporationv. NLRC.
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MANNEROFCREATIONTEST(ORIGINALCHARTERTEST) The test in determining whether a governmentowned or controlledcorporationissubjecttocivilservicelawisthemanner of its creation that such government corporations created by special charters are subject to its provisions while those incorporatedunderthegeneralcorporationlawarenotwithinits coverage Art.106.Contractororsubcontractor.Wheneveranemployerentersinto acontractwithanotherpersonfortheperformanceoftheformerswork, the employees of the contractor and of the latters subcontractor, if any, shallbepaidinaccordancewiththeprovisionsofthisCode. Intheeventthatthecontractororsubcontractorfailstopaythewagesof hisemployeesinaccordancewiththisCode,theemployershallbejointly andseverallyliablewithhiscontractororsubcontractortosuchemployees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. TheSecretaryofLaborandEmploymentmay,byappropriateregulations, restrict or prohibit the contractingout of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he maymakeappropriatedistinctionsbetweenlaboronlycontractingandjob contractingaswellasdifferentiationswithinthesetypesofcontractingand determine who among the parties involved shall be considered the employer for purposes of this Code, to prevent any violation or circumventionofanyprovisionofthisCode. Thereis"laboronly"contractingwherethepersonsupplyingworkerstoan employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agentoftheemployerwhoshallberesponsibletotheworkersinthesame mannerandextentasifthelatterweredirectlyemployedbyhim. PURPOSEOFTHELAW Thereareunscrupulousemployeeswhoengageinthepracticeof laboronlycontractinginordertoescapeliabilityforbenefitsand privilegesaccruingtooneholdingaregularemployment Ecal v. NLRC, 13 March 1991without the law prohibiting this practice,poorworkersareleftatthemercyoftheemployer LABORONLYCONTRACTING Wherethepersonsupplyingworkerstoanemployer: 1. Does not have substantial capital or investment in the form of tools,equipment,machineries,workpremises,amongothers,and a. Veloso:havingneithersubstantialcapitalnorinvestment is enough for one to be considered as a laboronly contractor. It may be either a contractor has limited capitalbutnosufficienttoolsorviceversa.Eithercase, he would need to run to his principal to pay his employees. 2. Theworkersrecruitedandplacedbysuchpersonareperforming activities which are directly related to the principal business of suchemployer PRINCIPAL CONTRACTOR *does not have substantial capital or investment in the form of tools,etc. *workers perform activities directly related to the principal businessofemployer WORKERS
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DIRECTLYRELATED ACTIVITIES AND ACTIVITIES NECESSARY OR DESIRABLEINTHEUSUALBUSINESSORTRADEDISTINGUISHED DIRECTLYRELATEDACTIVITIES DESIRABLEINTHEUSUAL BUSINESSORTRADE Article106 Article280 Refers to the standard if laboronly Usedtodeterminecasualorregular contractingexists employment Note: Thus,whiletheservicesmaybeconsidereddirectlyrelatedtotheprincipal business of the employer, nevertheless, they are not necessary in the conductoftheprincipalbusinessoftheemployer.(Neriv.NLRC,43SCAD 64) LEGALEFFECTOFFINDINGAPERSONASLABORONLYCONTRACTOR Said person or intermediary is considered merely as an agent of theemployer The employer is made responsible for the employees as if they havebeendirectlyemployedbytheemployer INHOUSEAGENCY Referstoacontractororsubcontractorengagedinthesupplyof laborwhichis o Owned,managedorcontrolledbytheprincipal o Operates solely for the principal owning, managing, or controllingit Thisiscontrarytopublicpolicy JOBCONTRACTINGALLOWABLEUNDERTHELAWIF 1. The contractor carries on an independent business and undertakesthecontractworkonhisownaccount,underhisown responsibility, according to his own manner and method, free from the control and direction of his employer or principal in all mattersconnectedwiththeperformanceoftheworkexceptasto theresultsthereof Thecontractorhassubstantialcapitalorinvestmentintheformof tools, equipment, machineries, work premises, and other materials *according to the case of Neri, compliance with either is sufficient for compliancebutaccordingtoJusticeVeloso,bothmustbepresentforthere tobeavalidjobcontracting. Additionalnotes: Injobcontracting,theprincipalisconsideredanindirectemployer withrespecttounpaidwagesbutonlytotheextentofthevalue oftheworkdone.Thecontractoristhedirectemployer. In labor contracting, the principal becomes the direct employer andthecontractorisconsideredanagentoftheemployer. In job contracting, what is essential is the presence of neither substantial capital nor substantial investment. It is not really essentialtoestablishthedirectrelationtotheprincipalbusiness ofprincipal. In job contracting, wherein there is a subcontractor, the same shall be considered as the employer of the workers. It usually happens that when there is a contractor with no substantial capital or investment, he gets a subcontractor. If there is agreement between principal and contractor, they are jointly consideredasemployers.Ifthereisnoagreement,thecontractor shallbeconsideredaslaboronlycontractor.Whathappensnow tothesubcontractorisuncharteredareainthelaborcode.Itis notknownifheisconsideredasanemployeeornot. Performsworkdirectlyrelatedtothebusinessoftheprincipalis nottobeconsideredasahandicap.Whatshouldbeconsidered asahandicaparethetwoprecedingnosufficientcapitalandno substantialinvestmentintheformoftools,equipment,etc. A job contractor should be stripped off any handicap present in laboronlycontractors THEREISNOEMPLOYEREMPLOYEERELATIONSHIPINJOBCONTRACTING 2.
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No EER exists between the owner of the project and the employeesofthecontractor The owner of the project is only the indirect employer by operationoflaw,ofthecontractorsemployees The law itself however creates such a relationship when the contractorfailstopaytheemployeesthewagesandonlyforthis limitedpurpose corporationwhich,notbeinganemployer,contractswithanindependent contractorfortheperformanceofanywork,task,joborproject. HOWCANARTICLE106BERECONCILEDWITH107? Article106and107aredifferentfromoneanother The preceding phrase in Article 107 is needed to bridge the gap betweenArticle106and107 Article106contemplatesdependentcontractors Article107contemplatesindependentcontractors Dependent contracting is contemplated in security agency situationsespeciallyinbanks Independent contractor who is independent with respect to the elementofcontrol(seeLakasngIndustriyacase) Being dependent or independent contractor is not mutually exclusive from being a laboronly contractor or job contractor one can be a dependent contractor and job contractor at the sametime INDIRECTEMPLOYER An indirect or statutory employer is one who enters into a contract with an independent contractor for the performance of any work, task, job, or project not directly related to the employersbusiness INDEPENDENTCONTRACTOR Arethosewhoexerciseindependentemployment,contractingto do a piece of work according to their own methods and without beingsubjecttocontroloftheiremployerexceptastotheresult oftheirwork Mansalv.PPGochecoLumber,96Phil941;RosarioBros.v.Ople, 131SCRA172:apersonwhohasnocapitalormoneyofhisown topayhislaborersortocomplywithhisobligationstothem,who filesnobondtoanswerforthefulfillmentofhiscontractswithhis employer falls short of requisites or conditions necessary to classifyhimasindependentcontractor.
MANDAUEGALLEONTRADINGCASE,14MARCH2008 Theintermediaryismerelyanagentoftheprincipal Veloso: the SC is giving too much emphasis on the element of workingrelateddirectlytothebusinessoftheprincipal Whatiftherewasnodirectrelation?Doesthatmeanthereisno laboronlycontracting? AnIllustrationisasecurityagencysupplyingguardsinthebank. If there is a question on the bar regarding this. There are two schools of thought. One focuses on two handicapsone having no capital and investment and working directly related to the business of principal. Another focuses on one having no substantialcapitalornosubstantialinvestment. LAKASNGiNDUSTRIYACASE,540SCRA250 SC defined job contracting as a permissible contract if the following conditions are metif the contractor does the job on his own accord and is determinate of the means, methods to e employed;andhehassufficienttools,materials,etc. Lookingatthiscase,therearefourrequisitesonjobcontracting o Sufficientinvestment o Sufficientcapital o Contractorcarriesanindependentbusiness o Workdirectlyrelated HowcanthiscasebereconciledwithArticle106? Art.107.Indirectemployer.Theprovisionsoftheimmediatelypreceding article shall likewise apply to any person, partnership, association or
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NOTBEINGANEMPLOYERCONSTRUED Under Article 107, this refers only to one who is not a direct employerundertheprecedingArticle106 ThecoverageofArticle107isnotlimitedtoonenotanemployer asdefinedinArticle97(b) A company may not be considered as a direct employer as understood in Article 106 but may still be considered as an indirectemployerunderArticle107 Veloso:whentheprovisionmentionsindependentcontracting,it logically follows that the law admits the existence of dependent contracting. An illustration of this is the case of security guard agencies. Article97(b)."Employer"includesanypersonactingdirectlyorindirectly intheinterestofanemployerinrelationtoanemployeeandshallinclude thegovernmentandallitsbranches,subdivisionsandinstrumentalities,all governmentownedorcontrolledcorporationsandinstitutions,aswellas nonprofitprivateinstitutions,ororganizations. DEPARTMENTORDERNO.1802 (Seriesof2002) RULES IMPLEMENTING ARTICLES 106 TO 109 OF THE LABOR CODE, AS AMENDED By virtue of the power vested in the Secretary of Labor and Employment under Articles 5 (Rulemaking) and 106 (Contractor or Subcontractor) of the Labor Code of the Philippines, as amended, the following regulations governingcontractingandsubcontractingarrangementsareherebyissued: Section 1. Guiding principles. Contracting and subcontracting arrangements are expressly allowed by law and are subject to regulation for the promotion of employment and the observance of the rights of workers to just and humane conditions of work, security of tenure, self organization, and collective bargaining. Laboronly contracting as defined hereinshallbeprohibited. Section2.Coverage.TheseRulesshallapplytoallpartiesofcontracting and subcontracting arrangements where employeremployee relationship exists. Placement activities through private recruitment and placement agencies as governed by Articles 25 to 39 of the Labor Code are not coveredbytheseRules. NOTES: Article106speaksofEERbyfictionoflaw.Ifthereislaboronly contracting,theprincipalisconsideredasadirectemployerwhile ontheotherhand,ifthereisjobcontracting,theprincipalisonly anindirectemployer. When you speak of Article 106, not all provisions of the Labor Codeshouldbemadeapplicable.Lookattheprovisionsonatitle totitlebasis. Section 3. Trilateral Relationship in Contracting Arrangements. In legitimate contracting, there exists a trilateral relationship under which thereisacontractforaspecificjob,workorservicebetweentheprincipal and the contractor or subcontractor, and a contract of employment betweenthecontractororsubcontractoranditsworkers.Hence,thereare threepartiesinvolvedinthesearrangements,theprincipalwhichdecides to farm out a job or service to a contractor or subcontractor, the contractor or subcontractor which has the capacity to independently undertaketheperformanceofthejob,workorservice,andthecontractual workersengagedbythecontractororsubcontractortoaccomplishthejob workorservice. Section4.DefinitionofBasicTerms.Thefollowingtermsasusedinthese Rules,shallmean:
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(a) "Contracting" or "subcontracting" refers to an arrangement whereby a principal agrees to put out or farm out with a contractor or subcontractor the performance or completion of a specific job, work or service within a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed within or outsidethepremisesoftheprincipal. (b) "Contractor or subcontractor" refers to any person or entity engagedinalegitimatecontractingorsubcontractingarrangement. (c)"Contractualemployee"includesoneemployedbyacontractoror subcontractor to perform or complete a job, work or service pursuant to anarrangementbetweenthelatterandaprincipal. (d)"Principal"referstoanyemployerwhoputsoutorfarmsoutajob, serviceorworktoacontractororsubcontractor. Section 5. Prohibition against laboronly contracting. Laboronly contracting is hereby declared prohibited. For this purpose, laboronly contracting shall refer to an arrangement where the contractor or subcontractormerelyrecruits,suppliesorplacesworkerstoperformajob, work or service for a principal, and any of the following elements are present: (i)Thecontractororsubcontractordoesnothavesubstantialcapitalor investmentwhichrelatestothejob,workorservicetobeperformedand the employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the mainbusinessoftheprincipal;or (ii) the contractor does not exercise the right to control over the performanceoftheworkofthecontractualemployee. Theforegoingprovisionsshallbewithoutprejudicetotheapplicationof Article248(C)oftheLaborCode,asamended. "Substantial capital or investment" refers to capital stocks and subscribed capitalization in the case of corporations, tools, equipment, implements,machineriesandworkpremises,actuallyanddirectlyusedby the contractor or subcontractor in the performance or completion of the job,workorservicecontractedout. The"righttocontrol"shallrefertotherightreservedtothepersonfor whomtheservicesofthecontractualworkersareperformed,todetermine not only the end to be achieved, but also the manner and means to be usedinreachingthatend. THE CONTRACTOR DOES NOT EXERCISE THE RIGHT TO CONTROL OVER THEPERFORMANCEOFTHEWORKOFTHECONTRACTUALEMPLOYEE. The Department Order added this element for one to be consideredlaboronlycontracting Veloso:therighttocontrolshouldn'tbeaddedasadeterminant oflaboronlycontracting Section 6. Prohibitions. Notwithstanding Section 5 of these Rules, the following are hereby declared prohibited for being contrary to law or publicpolicy: (a) Contracting out of a job, work or service when not done in good faith and not justified by the exigencies of the business and the same results in the termination of regular employees and reduction of work hoursorreductionorsplittingofthebargainingunit; (b)Contractingoutofworkwitha"cabo"asdefinedinSection1(ii), RuleI,BookVoftheseRules."Cabo"referstoapersonorgroupofpersons or to a labor group which, in the guise of a labor organization, supplies workers to an employer, with or without any monetary or other considerationwhetherinthecapacityofanagentoftheemployerorasan ostensibleindependentcontractor;
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(c) Taking undue advantage of the economic situation or lack of bargaining strength of the contractual employee, or undermining his security of tenure or basic rights, or circumventing the provisions of regularemployment,inanyofthefollowinginstances: (i) In addition to his assigned functions, requiring the contractual employee to perform functions which are currently being performed by the regular employees of the principal or of the contractor or subcontractor; (ii) Requiring him to sign, as a precondition to employment or continuedemployment,anantedatedresignationletter;ablankpayroll;a waiveroflaborstandardsincludingminimumwagesandsocialorwelfare benefits;oraquitclaimreleasingtheprincipal,contractororsubcontractor fromanyliabilityastopaymentoffutureclaims;and (iii)Requiringhimtosignacontractfixingtheperiodofemployment toatermshorterthanthetermofthecontractbetweentheprincipaland thecontractororsubcontractor,unlessthelattercontractisdivisibleinto phasesforwhichsubstantiallydifferentskillsarerequiredandthisismade knowntotheemployeeatthetimeofengagement; (d) Contracting out of a job, work or service through an inhouse agencywhichreferstoacontractororsubcontractorengagedinthesupply oflaborwhichisowned,managedorcontrolledbytheprincipalandwhich operatessolelyfortheprincipal; (e) Contracting out of a job, work or service directly related to the business or operation of the principal by reason of a strike or lockout whetheractualorimminent; (f)Contractingoutofajob,workorservicebeingperformedbyunion members when such will interfere with, restrain or coerce employees in theexerciseoftheirrightstoselforganizationasprovidedinArt.248(c)of theLaborCode,asamended. NOTES: ThisDOshouldonlyserveasanadvisoryregardingArticle106of the Labor Code but with its provisions, it seems to encroach on laborrelations See Article 248 (f): contracting out constitutes unfair labor practice Meralco v. Quisumbing, 382 SCRA 173: contracting out is part of managementprerogative 186 SCRA 496 (1990): contracting out is a propriety right of the employerinitsexerciseofmanagementprerogative Ruben Serrano case (2000): contracting out is valid and those whichareredundantandsuperfluousisterminable HowdoesitsumupwiththeArticle248?Theyarethereforenot valid. Section 7. Existence of an employeremployee relationship. The contractor or subcontractor shall be considered the employer of the contractualemployeeforpurposesofenforcingtheprovisionsoftheLabor Codeandothersociallegislation.Theprincipal,however,shallbesolidarily liablewiththecontractorintheeventofanyviolationofanyprovisionof theLaborCode,includingthefailuretopaywages. Theprincipalshallbedeemedtheemployerofthecontractualemployeein anyofthefollowingcasesasdeclaredbyacompetentauthority: (a)wherethereislaboronlycontracting;or (b) where the contracting arrangement falls within the prohibitions providedinSection6(Prohibitions)hereof. NOTES: DObasesitsprovisiononArticle109
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Rosewood Processing Incorporated v. NLRC 290 SCRA 408 (426 427): such is not so, the principal becomes liable if it conspired withthecontractorintheillegalterminationoftheemployees ThiscasesaidthatArticle109onlyappliestopaymentofwages Veloso:DO18isthereforedumb Section 7 also makes a principal an employer absent laboronly contractingchangingthewordingofArticle106 (b) The place of work and terms and conditions of employment, including a statement of the wage rate applicable to the individual contractualemployee;and (c) The term or duration of employment, which shall be coextensive with the contract of the principal and subcontractor, or with the specific phaseforwhichthecontractualemployeeisengaged,asthecasemaybe. Thecontractororsubcontractorshallinformthecontractualemployeeof the foregoing terms and conditions on or before the first day of his employment. Section10.EffectofTerminationofContractualEmployment.Incasesof termination of employment prior to the expiration of the contract betweentheprincipalandthecontractororsubcontractor,therightofthe contractualemployeetoseparationpayorotherrelatedbenefitsshallbe governed by the applicable laws and jurisprudence on termination of employment. Wheretheterminationresultsfromtheexpirationofthecontractbetween theprincipalandthecontractororsubcontractor,orfromthecompletion of the phase of the job, work or service for which the contractual employee is engaged, the latter shall not be entitled to separation pay. However, this shall be without prejudice to completion bonuses or other emoluments,includingretirementpayasmaybeprovidedbylaworinthe contractbetweentheprincipalandthecontractororsubcontractor. Section 11. Registration of Contractors or Subcontractors. Consistent withtheauthorityoftheSecretaryofLaborandEmploymenttorestrictor prohibit the contracting out of labor through appropriate regulations, a registration system to govern contracting arrangements and to be implementedbytheRegionalOfficesisherebyestablished.
Section8.RightsofContractualEmployees.ConsistentwithSection7of theseRules,thecontractualemployeeshallbeentitledtoalltherightsand privileges due a regular employee as provided for in the Labor Code, as amended,toincludethefollowing: a. Safeandhealthfulworkingconditions; b. Labor standards such as service incentive leave, rest days, overtimepay,holidaypay,13thmonthpayandseparationpay; c. Socialsecurityandwelfarebenefits; d. Selforganization, collective bargaining and peaceful concerted action;and e. Securityoftenure. NOTES: DO18exceedstheauthoritygiventotheSecretaryofLaborasit encroachesonceagainonlaborrelations Section9.Contractbetweencontractororsubcontractorandcontractual employee. Notwithstanding oral or written stipulations to the contrary, thecontractbetweenthecontractororsubcontractorandthecontractual employee,whichshallbeinwriting,shallincludethefollowingtermsand conditions: (a)Thespecificdescriptionofthejob,workorservicetobeperformed bythecontractualemployee;
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The registration of contractors and subcontractors shall be necessary for purposes of establishing an effective labor market information and monitoring. Failuretoregistershallgiverisetothepresumptionthatthecontractoris engagedinlaboronlycontracting. NOTES: Ifyouareajobcontractorbutfailedtoregister,youarepresumed tobealaboronlycontractor Section12.Requirementsforregistration.Acontractororsubcontractor shall be listed in the registry of contractors and subcontractors upon completion of an application form to be provided by the DOLE. The applicantcontractororsubcontractorshallprovideintheapplicationform thefollowinginformation: (a) The name and business address of the applicant and the area or areaswhereitseekstooperate; (b) The names and addresses of officers, if the applicant is a corporation,partnership,cooperativeorunion; (c) The nature of the applicant's business and the industry or industrieswheretheapplicantseekstooperate; (d) The number of regular workers; the list of clients, if any; the number of personnel assigned to each client, if any and the services providedtotheclient; (e) The description of the phases of the contract and the number of employeescoveredineachphase,whereappropriate;and (f) A copy of audited financial statements if the applicant is a corporation,partnership,cooperativeoraunion,orcopyofthelatestITRif theapplicantisasoleproprietorship. Theapplicationshallbesupportedby: (a) A certified copy of a certificate of registration of firm or business namefromtheSecuritiesandExchangeCommission(SEC),Departmentof Trade and Industry (DTI), Cooperative Development Authority (CDA), or fromtheDOLEiftheapplicantisaunion;and (b) A certified copy of the license or business permit issued by the local government unit or units where the contractor or subcontractor operates. The application shall be verified and shall include an undertaking that thecontractororsubcontractorshallabidebyallapplicablelaborlawsand regulations. Section13.Filingandprocessingofapplications.Theapplicationandits supporting documents shall be filed in triplicate in the Regional Offices where the applicant principally operates. No application for registration shallbeacceptedunlessalltheforegoingrequirementsarecompliedwith. Thecontractororsubcontractorshallbedeemedregistereduponpayment ofaregistrationfeeofP100.00totheRegionalOffice. Where all the supporting documents have been submitted, the Regional Officeshalldenyorapprovetheapplicationwithinseven(7)workingdays afteritsfiling. Upon registration, the Regional Office shall return one set of the duly stampedapplicationdocumentstotheapplicant,retainonesetforitsfile, and transmit the remaining set to the Bureau of Local Employment. The Bureaushalldevisethenecessaryformsfortheexpeditiousprocessingof allapplicationsforregistration.
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Section14.Dutytoproducecopyofcontractbetweentheprincipaland the contractor or subcontractor. The principal or the contractor or subcontractor shall be under an obligation to produce a copy of the contract between the principal and the contractor in the ordinary course of inspection. The contractor shall likewise be under an obligation to produceacopyofthecontractofemploymentofthecontractualworker when directed to do so by the Regional Director or his authorized representative. A copy of the contract between the contractual employee and the contractor or subcontractor shall be furnished the certified bargaining agent,ifthereisany. Section15.AnnualReportingofRegisteredContractors.Thecontractor or subcontractor shall submit in triplicate its annual report using a prescribedformtotheappropriateRegionalOfficenotlaterthanthe15th ofJanuaryofthefollowingyear.Thereportshallinclude: (a) A list of contracts entered with the principal during the subject reportingperiod; (b) The number of workers covered by each contract with the principal; (c) A sworn undertaking that the benefits from the Social Security System (SSS), the Home Development Mutual Fund (HDMF), PhilHealth, Employees Compensation Commission (ECC), and remittances to the BureauofInternalRevenue(BIR)dueitscontractualemployeeshavebeen madeduringthesubjectreportingperiod. TheRegionalOfficeshallreturnonesetofthedulystampedreporttothe contractor or subcontractor, retain one set for its file, and transmit the remainingsettotheBureauofLocalEmploymentwithinfive(5)daysfrom receiptthereof. Section 16. Delisting of contractors or subcontractors. Subject to due process, the Regional Director shall cancel the registration of contractors orsubcontractorsbasedonanyofthefollowinggrounds: (a) Nonsubmission of contracts between the principal and the contractororsubcontractorwhenrequiredtodoso; (b)Nonsubmissionofannualreport; (c) Findings through arbitration that the contractor or subcontractor has engaged in laboronly contracting and the prohibited activities as providedinSection6(Prohibitions)hereof;and (d)Noncompliancewithlaborstandardsandworkingconditions. NOTES: A laboronly contractor is deemed to be a laboronly contractor evenifthereiscompliancewithlaborstandardlaws Section17.Renewalofregistrationofcontractorsorsubcontractors.All registered contractors or subcontractors may apply for renewal of registration every three years. For this purpose, the Tripartite Industrial PeaceCouncil(TIPC)ascreatedunderExecutiveOrderNo.49,shallserve astheoversightcommitteetoverifyandmonitorthefollowing: (a)Engaginginallowablecontractingactivities;and (b)Compliancewithadministrativereportingrequirements. NOTES: TIPC composed of labor, management and government but it doesn'toperatenationwide
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Section 18. Enforcement of Labor Standards and Working Conditions. ConsistentwithArticle128(VisitorialandEnforcementPower)oftheLabor Code, as amended, the Regional Director through his duly authorized representatives,includinglaborregulationofficersshallhavetheauthority toconductroutineinspectionofestablishmentsengagedincontractingor subcontracting and shall have access to employer's records and premises atanytimeofthedayornightwheneverworkisbeingundertakentherein, andtherighttocopytherefrom,toquestionanyemployeeandinvestigate any fact, condition or matter which may be necessary to determine violationsorwhichmayaidintheenforcementoftheLaborCodeandof any labor law, wage order, or rules and regulations issued pursuant thereto. Thefindingsofthedulyauthorizedrepresentativeshallbereferredtothe RegionalDirectorforappropriateactionasprovidedforinArticle128,and shallbefurnishedthecollectivebargainingagent,ifany. Based on the visitorial and enforcement power of the Secretary of Labor and Employment in Article 128 (a), (b), (c) and (d), the Regional Director shall issue compliance orders to give effect to the labor standards provisionsoftheLaborCode,otherlaborlegislationandtheseguidelines. Section19.Solidaryliability.Theprincipalshallbedeemedasthedirect employerofthecontractualemployeesandtherefore,solidarilyliablewith the contractor or subcontractor for whatever monetary claims the contractual employees may have against the former in the case of violations as provided for in Sections 5 (LaborOnly contracting), 6 (Prohibitions), 8 (Rights of Contractual Employees) and 16 (Delisting) of theseRules.Inaddition,theprincipalshallalsobesolidarilyliableincase the contract between the principal and contractor or subcontractor is preterminatedforreasonsnotattributabletothefaultofthecontractoror subcontractor. NOTES: Does Article 106 allow this? No because Article 106 speaks of directliabilityandnotsolidaryliability. The DO creates a liability that doesn't exist in law. when the principalpreterminatesacontract,theDOconsidershimliable.
Art.108.Postingofbond.Anemployerorindirectemployermayrequire thecontractororsubcontractortofurnishabondequaltothecostoflabor undercontract,onconditionthatthebondwillanswerforthewagesdue theemployeesshouldthecontractororsubcontractor,asthecasemaybe, failtopaythesame. PURPOSEOFTHELAW To protect the employees from the economic exploits by unscrupulouscontractorsand/orsubcontractorswhomaydeclare atwillthattheyarelosingduetofinancialdifficulties AMOUNTOFTHEBOND The bond shall be equal to the cost of labor under contract and shouldthecontractororsubcontractorfailtopaythewagesdue theemployees,thebondshallanswer FAILURETOPOSTABOND Where the employer fails to require the contractor to post a bond, the employer must answer for whatever liabilities the contractormayhaveincurredtohisemployees This is without prejudice to reimbursement from the contractor forwhateveramountitwillhavetopay Art.109.Solidaryliability.Theprovisionsofexistinglawstothecontrary notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provisionofthisCode.Forpurposesofdeterminingtheextentoftheircivil liabilityunderthisChapter,theyshallbeconsideredasdirectemployers. LIABILITYFORUNPAIDWAGES
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It is settled that in legitimate job contracting, the principal is solidarily liable with the contractor for the payment of unpaid wages For purposes of determining the civil liability, the indirect employerisconsideredasdirectemployer Also, there is solidary liability with respect to violations of the LaborCode least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activityexists. CLASSIFICATIONOFEMPLOYMENTSTATUS Thisarticleisnotayardstickfordeterminingtheexistenceofthe an employment relationship because it mainly distinguishes regular and casual employees, for purposes of determining the rightofanemployeetocertainbenefits,tojoinorformaunion, ortosecurityoftenure(Phil.Globalcase,June2005) Any agreement may provide that one party shall render services for and in behalf of another for a consideration without being hired as an employee. This is true in the case of independent contractorshipaswellasinagencyagreements. REGULAREMPLOYMENT,TESTOFDETERMINATION Anemploymentisdeemedregularwheretheemployeeeither: 1. Has been engaged to perform which are usually necessary or desirableintheusualbusinessortradeofanemployer a. Opulencia Ice Plant and Storage v. NLRC, 46 SCAD 821: Determination of regular or casual employment is not affected by the fact of the employees regular presence intheplaceofworkisnotrequired,themoresignificant consideration being that the work of the employee is usually necessary or desirable in the business of the employer. b. Tanv.Lagrama,387SCRA393:theprimarystandardor test for determining regular employment is the reasonable connection between the particular activity performedbytheemployeeinrelationtotheusualtrade orbusinessoftheemployer. c. RJL Martinez v. NLRC, 127 SCRA 445: it can be inferred fromthelengthoftimethatanemployeehasbeenmade todothejobiftheactivitiesperformedbyhimisusually
PURPOSEOFTHELAW To assure compliance with the provisions in the Code including provisionsonstatutoryminimumwage Rosewood:109shouldnotbeusedtoawardunpaidwagesdueto illegaldismissalcases INSOLVENCYNOTAPREREQUISITEFORSOLIDARYLIABILITY There is nothing in Article 106 that indicates that insolvency or unwillingnesstopayisarequisiteforsolidaryliabilitytoarise ONUSPROBANDI Thelawcaststheburdenonthecontractortoprovethathehas substantialcapital,investment,tools,etc. Art. 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determinedatthetimeoftheengagementoftheemployeeorwherethe workorservicetobeperformedisseasonalinnatureandtheemployment isforthedurationoftheseason. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at
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2. necessary or desirable in the usual business or trade of theemployer. Hasrenderedatleastoneyearofservice,whethersuchserviceis continuous or broken, with respect to the activity in which he is employed. a. Theemploymentisalsoconsideredregularbutonlywith respecttosuchactivityandwhilesuchactivityexists. b. Caparosov.CA,15February2007:evenifanemployee is engaged to perform activities that are necessary or desirableintheusualtradeorbusinessoftheemployer, it does not preclude the fixing of employment for a definiteperiod. c. Regular employment automatically attaches to the employee upon the cessation of his employment as casualemployment Those performing janitorial and messenger services are considered casual employees but would be deemed as regular if theyareemployedformorethan1year
NOTES: Sonzav.ABSCBN/ABSCBNv.Nazareno ThiscasestatedthatSonzawasjustatalentandnotanemployee ofABSCBN Production assistants whose task is necessary and desirable is considered an employee. (Despite the ruling in Singer Sewing Machinecase) Phil.Globalcase,June2005 Evenifyouperformtaskswhichareusuallynecessarytotheusual businessoftheemployer,itdoesn'tautomaticallymeanthatone isaregularemployee. Thereshouldfirstbeanadmissionoftheexistenceofemployer employeerelationship. SanMiguelCorp.v.Aballa,June28,2005 Workers engaged in shrimp processing perform tasks which are necessary and desirable to the aquaculture business of the employer
*Article280doesn'tprohibittheexistenceoffixedperiodemployment TEMPORARYEMPLOYMENT Where an employee is engaged to work on a specific project or undertaking,thecompletionofwhichhasbeendeterminedatthe timeoftheengagementoftheemployee The decisive determinant should not be the activities that the employeesiscalledupontoperform,butthedaycertainagreed upon by the parties for the commencement and termination of theiremploymentrelationship Day certain: that which must necessarily come, although it may notknownwhen WhiletheSCupheldthevalidityofthisformofemployment,itdid so with a caveat that where the circumstances were apparent that the period has been imposed to frustrate the acquisition of regularstatus,thesameshouldbestruckdownascontrarytolaw, morals,customs,publicorder,andpublicpolicy. Article280:RegularEmployment *Thereisregularemploymentifitisdesirableornecessary *Regularemployment=permanentemployment Projectemployee Would have the security of tenure during the periodoftheproject Seasonalemployee Would have the security of tenure during the seasonhewashired Temporaryemployee Casual employment: not desirable or not necessary **Missinglinkbetween280and281:Article279
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Securityoftenure Pertainstoregularemployment=permanentemployment Twinreliefsreinstatementandfullbackwages Article281:Probationaryemployment butdon'tnecessarilyattainregularemploymentstatusunderArticle280. Seafarers are an example. They cannot be considered as regular employees.(Millaresv.NLRC,385SCRA306) SEASONALEMPLOYMENT Whereanemployeeisengagedtoworkduringaparticularseason on an activity that is usually necessary or desirable in the usual businessortradeoftheemployer Employmentusuallyendsattheendoftheseason Terminationdoesn'tconstituteillegaldismissal Proviso which considered as regular employees who have rendered1yearofserviceisnotapplicabletoseasonalemployees During offseason, the relationship of employer and employee is notsevered.Theseasonalemployeeismerelyconsideredasona leaveofabsencewithoutpay. CASUALEMPLOYMENT Whereanemployeeisengagedtoworkonanactivitythatisnot usuallynecessaryordesirableintheusualbusinessortradeofthe employer The work is purely casual when it is not part of the business in whichtheemployerisengaged PURPOSE OF THE LAW MAKING CASUAL EMPLOYEES WHO HAVE RENDEREDATLEASTONEYEARSERVICEASREGULAREMPLOYEES Thepurposeistoputanendtocasualemploymentinregularjobs whichhavebeenabusedbymanyemployerstopreventsocalled casuals from enjoying the benefits of regular employees or to preventcasualsfromjoiningunions This is to give meaning to the constitutional meaning of security oftenureandrighttoselforganization PROJECTEMPLOYMENT
Article280: Regularv.Casual employment seasonal project temporary
Article279: Securityof tenureprovision twinreliefsof reinstatement andfull backwages
Article281: Probationary employee
FIXEDPERIOD EMPLOYMENT SHOULD COMPLY WITH THE FOLLOWING CRITERIA(PureFoodsCorp.v.NLRC,1997) 1. The fixed period of employment was knowingly and voluntarily agreed upon by the parties, without any force, or improper pressure being brought to bear upon the employee and absent anyothercircumstancesvitiatinghisconsent a. If the contract is one of adhesion, then there is no voluntaryagreementonthefixedperiodemployment 2. Itsatisfactorilyappearsthattheemployerandtheemployeedealt with each other on a more or less equal terms with no moral dominance whatever being exercised by the former upon the latter a. Employees always agree on any terms of employment justtogetthemselvesemployed *Note: There are certain forms of employment which also require the performanceofusualanddesirablefunctionsandwhichexceedoneyear
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Where the employees are employed in connection with a particular construction project or phase thereof with predetermineddateofcompletion The term of employment is coterminus with the completion of theproject Commencementandterminationofemploymentisdeterminedor determinable(IntegratedContractorscase9August2005) PROJECTEMPLOYEESNOTENTITLEDTOSEPARATEPAY Project employees are not entitled to separate pay if they are terminated as a result of the completion of the project or any phase thereof in which they are employed, regardless of the number of projects in which they have been employed by a particularconstructioncompany The company isnt required to obtain a clearance in connection withsuchtermination TERMINATION OF PROJECT EMPLOYEE; PROJECT EMPLOYEES AS REGULAREMPLOYEES If a construction project or any phase thereof has a duration of more than a year and the project employee is allowed to be employedthereinforatleastayear,suchemployeemaynotbe terminated until the completion of the project or of any phase thereof in which he is employed without a previous written clearance from the Secretary of Labor. If such an employee is terminated without clearance, he shall be entitled to reinstatementwithbackwages.(SeealsoPhilsystemsv.CA[2005]) Where the employment of project employee is extended long after the supposed project had been finished, he shall be considered as regular employee (LT Datu Co v. NLRC, 68 SCAD 220) Theemployershouldhavesubmittedorfiledasmanyreportsof terminationastherewereconstructionprojectsactuallyfinished. Thefailuretodososupportstheclaimoftherespondentthathe indeed was a regular employee. (Aurora Land Projects v. NLRC, 266SCRA48) PROJECTEMPLOYEESINTHEWORKPOOL Twotypesofworkpoolemployees o Original conceptwith or without a project, the work pool employees continue to be employees of the employer
IN THE CASES BELOW, THE SC DEFINES PROJECT EMPLOYMENT BUT ERRONEOUSLYDEFINESITOPPOSITEREGULAREMPLOYMENT(ATLEAST ACCORDINGTOJUSTICEV) Abesco v. CA: Where one is tasked to carry out and the nature anddurationofsuchisdeterminedinthecontractofemployment DWA case (March 2006): for failure to specify the project upon which the employee was hired, he is deemed to be a regular employee REPEATEDREHIRING Philsystemscase:repeatedrehiringasaprojectemployeedoesn't automaticallyoneasaregularemployee Caramolcase:repeatedrehiringasaprojectemployeeformore than44timesautomaticallydeemsoneasaregularemployee ____________: repeated rehiring deems one as a regular employee Rabago v. ESSO: seafarers are contractual employees and never regular Palomares v. NLRC: employees working on different projects doesn'tautomaticallymakeonearegularemployment ENTITLEMENTTODUEPROCESS Eastern Employment v. BEA: contractor or employer under legal obligationtofurnishprojectemployeeofnoticeoftermination PolicyInstruction19:thereislegalobligationtofurnishlocallabor officeofnoticeofterminationofproject
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Newconceptthereisalistofworkerswhoarefreeto work outside if there is no project and necessarily, they cannot be considered as employees if they are then renderingservicesforanother If the employees in the work pool are free to leave anytime and offer their services to other employers, then they are project employees employed by a construction company in a particular projectorinaphasethereof Notnecessarilyregulariftheyareonaworkpool(Abescov.CA) o ROOSCONSTRUCTIONV.NLRC,FEBRUARY4,2008 Absentaprojectemploymentcontractandterminationcontract, aworkerisconsideredaregularemployee CitesMaraginotv.NLRC o Continuousrehiringaftercessationofproject o Work in project is desirable or necessary to the usual businessoftheemployer Art. 281. Probationary employment. Probationary employment shall not exceedsix(6)monthsfromthedatetheemployeestartedworking,unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be consideredaregularemployee. PROBATIONARYEMPLOYEE One, who for a given period of time, is under observation and evaluation to determine whether or not he is qualified for permanentemployment During the probationary period, the employer is given the opportunitytoobservetheskill,competence,andattitudeofthe employeewhilethelatterseekstoprovetotheemployerthathe has the qualifications to meet the reasonable standards for permanentemployment Computationisonacalendardaybasisanditreckonsfromdate ofemploymentregardlessofanyinterveningdate Itmustbemadeknowntotheemployeebeforecommencement ofprobationaryemployment Probationaryemployeeonlyenjoysatemporaryemployment CHARACTERISTICSOFPROBATIONARYEMPLOYMENT
NONPROJECTEMPLOYMENT Anemploymentisdeemednonproject,wheretheemployeesare employed by a construction company without reference to any particularprojectoraphasethereof NONPROJECTEMPLOYMENTINTHEWORKPOOL Members of a work pool from which the construction company draws its project employees, if considered employees of the construction company while in the work pool, are nonproject employeesforanindefiniteperiod Iftheyareemployedinaparticularproject,thecompletionofthe project or of any phase thereof will not mean severance of the EER MEMBERS OF THE WORK POOL NOT ENTITLED TO UNINTERRUPTED WORK Members of the work pool merely maintain their employment status notwithstanding completion of the project or phase of work where they are assigned but they are not entitled to an uninterruptedwork TYPESOFNONPROJECTEMPLOYEES 1. Probationary 2. Regular 3. Casual
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(DelaCruzv.NLRC,GR145417,11December2003) 1. Itisanemploymentforatrialperiod 2. Itisatemporaryemploymentstatuspriortoregularemployment 3. Itarisesthroughacontractwiththefollowingelements a. Theemployeemustlearnandworkataparticulartypeof work b. Such work calls for certain qualifications, skills, experience,ortraining c. Theprobationisfixed d. The employer reserves the power to terminate the employmentduringorattheendofthetrialperiod e. Iftheemployeehaslearnedthejobandperformeditto the satisfaction of the employer, he becomes a regular employee DURATIONOFPROBATIONARYEMPLOYMENT Buiserv.Leogardo,131SCRA151 As a general rule, the probationary period of employment is limitedto6months Exceptionstothegeneralrule: o Whenthepartiesagreeotherwise o Whenitisestablishedbythecompanypolicy o When the same is required by the nature of the work performedbytheemployee PolicyInstructionNo.11,Section6a,Rule1,BookVI,RulesImplementing theLaborCode If the job is apprenticeable, the probationary employment is the apprenticeship period which is not more than 6 months nor less than3months,dependingonthenatureofthejob Ifthejobisnonapprenticeable/learnable,thentheprobationary employment is the learnership period which is not more than 3 months Uponexpirationofthetrainingperiod,theapprenticeorlearner becomes a regular employee and doesn't undergo anymore a probationary period in the company that conducted the training program.Howeverinanothercompany,hecanbeplacedunder probationaryemploymentperiod. EXTENSIONBYAGREEMENT The employer and employee may extend by agreement the probationaryemploymentbeyond6months If thus extended, the employee cannot later on claim regular statusonthegroundthatthe6monthperiodhadalreadyelapsed Remember, the general rule is that an employee who is allowed to work after the probationary period shall be considered a regularemployee.Theexceptionistheagreementbytheparties toextendprobationaryemployment.(MariwasaManufacturingv. Leogardo,GR74246,26January1989) SMCv.DelRosario(2004):ifitscompanypolicyandisrequiredby the nature of the work. This must however be exercised before theexpirationoftheperiod. ENTITLEMENTTOSECURITYOFTENURE DusitHotelcase,2005:Absentanyvalidextension,theemployee isdeemedtohavequalifiedasaregularemployee Howaboutprivateschoolteachers?(Lacuestacase) o Teacherhasafullload o Teachers in tertiary load must have taught for 6 consecutivesemesters o Teachersperformancemustbesatisfactory A regular employee cannot be subjected to a probationary employmentagainevenbyasistercompany DOUBLEORSUCCESSIVEPROBATIONNOTALLOWED Thesystemofdoubleorsuccessiveprobationisnotallowed The evil sought to be prevented is to discourage scheming employers from using the system to circumvent the mandate of the law on regularization and make it easier for them to dismiss theiremployees
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TERMINATIONOFPROBATIONARYEMPLOYMENT Probationary employees are protected by the security of tenure provisionoftheConstitution However, the services of the employee engaged in probationary basismaybeterminatedontwogrounds o Forajustcause o When he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement Art. 282. Termination by employer. An employer may terminate an employmentforanyofthefollowingcauses: a. Serious misconduct or willful disobedience by the employee of the lawfulordersofhisemployerorrepresentativeinconnectionwithhis work; Gross and habitual neglect by the employee of his duties; Fraudorwillfulbreachbytheemployeeofthetrustreposedinhimby his employer or duly authorized representative; Commissionofacrimeoroffensebytheemployeeagainsttheperson of his employer or any immediate member of his family or his duly authorized representatives; and Othercausesanalogoustotheforegoing. In general terms, this means that he was terminable anytime, permanent employment not having been attained in the meantime. Aslongastheterminationwasmadebeforetheexpirationofthe 6month period, the employer was within his rights to sever the EER PREEMPLOYMENT (INCONJUNCTIONWITHRA8072) RECRUITMENTANDPLACEMENTOFWORKERS Art.13.Definitions. a. b. "Worker" means any member of the labor force, whether employed or unemployed. "Recruitment and placement" refers to any act of canvassing, enlisting,contracting,transporting,utilizing,hiringorprocuring workers, and includes referrals, contract services, promising or advertisingforemployment,locallyorabroad,whetherforprofit 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. "Private feecharging employment agency" means any person or entityengagedinrecruitmentandplacementofworkersforafee which is charged, directly or indirectly, from the workers or employers or both. "License" means a document issued by the Department of Labor authorizing a person or entity to operate a private employment
b. c.
d.
c.
e. DELACRUZV.NLRC,11DECEMBER2003 As a probationary employee, he enjoys only temporary employmentstatus.
d.
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e. agency. "Private recruitment entity" means any person or association engaged in the recruitment and placement of workers, locally or overseas,withoutcharging,directlyorindirectly,anyfeefromthe workers or employers. "Authority" means a document issued by the Department of Labor authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity. "Seaman" means any person employed in a vessel engaged in maritime navigation. "Overseasemployment"meansemploymentofaworkeroutside the Philippines. "Emigrant" means any person, worker or otherwise, who emigrates to a foreign country by virtue of an immigrant visa or residentpermitoritsequivalentinthecountryofdestination. 1. TheSupremeCourtheldthatthisprovisionwasintendedneither to impose a condition on the basic rule nor to provide an exceptiontheretobutmerelytocreateapresumption Peoplev.Panis,142SCRA664:Thenumberofpersonsdealtwith is not an essential ingredient to the act of recruitment and placementofworkers.Anyoftheactsmentionedwillconstitute recruitmentandplacementevenifonlyoneprospectiveworkeris involved.
2.
f.
g. h.
i.
ARTICLE13(B)DEFINESRECRUITMENTANDPLACEMENTINTO11ACTS 1. Canvassing 2. Enlisting 3. Contracting 4. Transporting 5. Ultilizing 6. Hiring 7. Procuringworkers 8. Referrals 9. Contractservices 10. Promisingforemployment 11. Advertisingforemployment Note:
Art. 14. Employment promotion. The Secretary of Labor shall have the powerandauthority: a. Toorganizeandestablishnewemploymentofficesinadditionto the existing employment offices under the Department of Labor astheneedarises; b. To organize and establish a nationwide job clearance and information system to inform applicants registering with a particularemploymentofficeofjobopportunitiesinotherpartsof thecountryaswellasjobopportunitiesabroad; c. To develop and organize a program that will facilitate occupational, industrial and geographical mobility of labor and provideassistanceintherelocationofworkersfromoneareato another;and d. To require any person, establishment, organization or institution tosubmitsuchemploymentinformationasmaybeprescribedby theSecretaryofLabor. PROMOTIONOFEMPLOYMENT 1. Toorganizeandestablishnewemploymentofficesinadditionto the existing employment offices under the Department of Labor astheneedarises; 2. To organize and establish a nationwide job clearance and information system to inform applicants registering with a particularemploymentofficeofjobopportunitiesinotherpartsof thecountryaswellasjobopportunitiesabroad;
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3. To develop and organize a program that will facilitate occupational, industrial and geographical mobility of labor and provideassistanceintherelocationofworkersfromoneareato another; To require any person, establishment, organization or institution tosubmitsuchemploymentinformationasmaybeprescribedby theSecretaryofLabor; To issue such rules and regulations as may be necessary to regulate and supervise private sector participation in the recruitmentandplacementofworkers,locallyoroverseas,inthe contextofacomprehensivenationalemploymentprogram a. TheBureauofEmploymentServicesshallbeprimarilyresponsible for developing and monitoring a comprehensive employment program. It shall have the power and duty: 1. To formulate and develop plans and programs to implementtheemploymentpromotionobjectivesofthis Title; 2. Toestablishandmaintainaregistrationand/orlicensing system to regulate private sector participation in the recruitment and placement of workers, locally and overseas, and to secure the best possible terms and conditions of employment for Filipino contract workers and compliance therewith under such rules and regulationsasmaybeissuedbytheMinisterofLabor; 3. To formulate and develop employment programs designed to benefit disadvantaged groups and communities; 4. To establish and maintain a registration and/or work permitsystemtoregulatetheemploymentofaliens; 5. To develop a labor market information system in aid of propermanpoweranddevelopmentplanning; 6. Todeveloparesponsivevocationalguidanceandtesting systeminaidofproperhumanresourcesallocation;and 7. To maintain a central registry of skills, except seamen. TheregionalofficesoftheMinistryofLaborshallhavetheoriginal and exclusive jurisdiction over all matters or cases involving employeremployeerelationsincludingmoneyclaims,arisingout of or by virtue of any law or contracts involving Filipino workers for overseas employment except seamen: Provided, That the Bureau of Employment Services may, in the case of the National Capital Region, exercise such power, whenever the Minister of Labor deems it appropriate. The decisions of the regional offices of the Bureau of Employment Services, if so authorized by the MinisterofLaborasprovidedinthisArticle,shallbeappealableto
4. 5.
PLACEMENTPROCEDURES Applicants shall accomplish appropriate information sheets and submitsuchotherdocumentsasmaybeprescribedbytheBureau forpurpose Any applicant registering for employment with a public employment office shall be interviewed to determine his occupationalqualifications The public employment office shall refer him to any appropriate joborvacancy SUBMISSIONOFREPORTS Attheendofeachmonth,anemployerwithatleast6employees isrequiredtosubmittothenearestpublicemploymentofficethe following o Listofexistingjobvacanciesoropening o Listofnewemployees o Termination,layoffandrecruitment o Totalnumberofemployedworkersfortheperiod o Request for assistance if need to fill vacancies or openings Art.15.BureauofEmploymentServices.
b.
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theNationalLaborRelationsCommissionuponthesamegrounds providedinArticle223hereof.ThedecisionsoftheNationalLabor Relations Commission shall be final and inappealable. (Superseded by Exec. Order 797, May 1, 1982). TheMinisterofLaborshallhavethepowertoimposeandcollect feesbasedonratesrecommendedbytheBureauofEmployment Services.SuchfeesshallbedepositedintheNationalTreasuryas a special account of the General Fund, for the promotion of the objectives of the Bureau of Employment Services, subject to the provisionsofSection40ofPresidentialDecreeNo.1177. hisforeignemployer,theDOLEwithinone(1)yearfromtheeffectivityof this Act, is hereby mandated to formulate a fiveyear comprehensive deregulation plan on recruitment activities taking into account labor market trends, economic conditions of the country and emergency circumstanceswhichmayaffectthewelfareofmigrantworkers. SEC. 30. GRADUAL PHASEOUT OF REGULATORY FUNCTIONS. Within a periodoffive(5)yearsfromtheeffectivityofthisAct,theDOLEshallphase out the regulatory functions of the POEA pursuant to the objectives of deregulation. *However,thisissaidtohavebeenrepealedbyRA9422,April2007: AN ACT TO STRENGTHEN THE REGULATORY FUNCTIONS OF THE PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA), AMENDING FOR THIS PURPOSE REPUBLIC ACT NO. 8042, OTHERWISE KNOWNASTHE"MIGRANTWORKERSANDOVERSEASFILIFINOSACTOF 1995" xxx SEC.2.Section29ofthesamelawisherebyrepealed. SEC.3.Section30ofthesamelawisalsoherebyrepealed. Art. 17. Overseas Employment Development Board. An Overseas Employment Development Board is hereby created to undertake, in cooperationwithrelevantentitiesandagencies,asystematicprogramfor overseasemploymentofFilipinoworkersinexcessofdomesticneedsand toprotecttheirrightstofairandequitableemploymentpractices.Itshall havethepowerandduty: 1. TopromotetheoverseasemploymentofFilipinoworkersthrough a comprehensive market promotion and development program;
c.
ISSUANCEOFLICENSE DepartmentofLaborSecretarysitsaschairman DOLE Regional offices have been tasked to regulate over local recruitmentagencies AO 186, 1997: matter of licensing has been delegated to DOLE regionaloffices In international recruitment, it is the DOLE secretary who issues thelicense The POEA administrator doesn't issue the license to private recruitmentagencies Administratorinchargeofsuspensionoflicensebutappealableto Secretarywithin10days ClosureoflicenseisnowaffectedbyRA8042 Art.16.Privaterecruitment.ExceptasprovidedinChapterIIofthisTitle, nopersonorentityotherthanthepublicemploymentoffices,shallengage intherecruitmentandplacementofworkers. *ImpliedlyrepealedbythefollowingprovisionsinRA8042: SEC. 29. COMPREHENSIVE DEREGULATION PLAN ON RECRUITMENT ACTIVITIES.Pursuanttoaprogressivepolicyofderegulationwherebythe migration of workers becomes strictly a matter between the worker and
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2. Tosecurethebestpossibletermsandconditionsofemployment of Filipino contract workers on a governmenttogovernment basis and to ensure compliance therewith; To recruit and place workers for overseas employment on a governmenttogovernment arrangement and in such other sectors as policy may dictate; and ToactassecretariatfortheBoardofTrusteesoftheWelfareand TrainingFundforOverseasWorkers. 2. 3. provision of welfare and cultural services; promoteandfacilitatereintegrationofmigrantsintothe national mainstream; promote economic; political and cultural ties with the communities; and generally to undertake such activities as may be appropriatetoenhancesuchcooperativelinks.
3.
4. 5.
4.
Art.18.Banondirecthiring.NoemployermayhireaFilipinoworkerfor overseas employment except through the Boards and entities authorized by the Secretary of Labor. Directhiring by members of the diplomatic corps, international organizations and such other employers as may be allowedbytheSecretaryofLaborisexemptedfromthisprovision. Art.19.OfficeofEmigrantAffairs. a. PursuanttothenationalpolicytomaintainclosetieswithFilipino migrant communities and promote their welfare as well as establish a data bank in aid of national manpower policy formulation,anOfficeofEmigrantAffairsisherebycreatedinthe DepartmentofLabor.TheOfficeshallbeaunitattheOfficeofthe Secretary and shall initially be manned and operated by such personnel and through such funding as are available within the Department and its attached agencies. Thereafter, its appropriation shall be made part of the regular General Appropriations Decree. b. The office shall, among others, promote the wellbeing of emigrants and maintain their close link to the homeland by: 1. serving as a liaison with migrant communities;
Art.20.NationalSeamenBoard. a. A National Seamen Board is hereby created which shall develop and maintain a comprehensive program for Filipino seamen employed overseas. It shall have the power and duty: 1. To provide free placement services for seamen; 2. To regulate and supervise the activities of agents or representatives of shipping companies in the hiring of seamen for overseas employment and secure the best possible terms of employment for contract seamen workers and secure compliance therewith; 3. To maintain a complete registry of all Filipino seamen. b. The Board shall have original and exclusive jurisdiction over all matters or cases including money claims, involving employer employee relations, arising out of or by virtue of any law or contractsinvolvingFilipinoseamenforoverseasemployment.The decisions of the Board shall be appealable to the National Labor RelationsCommissionuponthesamegroundsprovidedinArticle 223 hereof. The decisions of the National Labor Relations Commissionshallbefinalandinappealable.
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Art. 21. Foreign service role and participation. To provide ample protection to Filipino workers abroad, the labor attaches, the labor reporting officers duly designated by the Secretary of Labor and the Philippine diplomatic or consular officials concerned shall, even without prior instruction or advice from the home office, exercise the power and duty: a. b. ToprovideallFilipinoworkerswithintheirjurisdictionassistance on all matters arising out of employment; ToinsurethatFilipinoworkersarenotexploitedordiscriminated against; Toverifyandcertifyasrequisitetoauthenticationthattheterms and conditions of employment in contracts involving Filipino workers are in accordance with the Labor Code and rules and regulationsoftheOverseasEmploymentDevelopmentBoardand National Seamen Board; To make continuing studies or researches and recommendations on the various aspects of the employment market within their jurisdiction; To gather and analyze information on the employment situation anditsprobabletrends,andtomakesuchinformationavailable; and To perform such other duties as may be required of them from timetotime. beneficiaries in the country in accordance with rules and regulations prescribedbytheSecretaryofLabor. Art.23.CompositionoftheBoards. a. The OEDB shall be composed of the Secretary of Labor and Employment as Chairman, the Undersecretary of Labor as Vice Chairman, and a representative each of the Department of Foreign Affairs, the Department of National Defense, the Central Bank, the Department of Education, Culture and Sports, the National Manpower and Youth Council, the Bureau of EmploymentServices,aworkersorganizationandanemployers organizationandtheExecutiveDirectoroftheOEDBasmembers. TheNationalSeamenBoardshallbecomposedoftheSecretaryof LaborandEmploymentasChairman,theUndersecretaryofLabor as ViceChairman, the Commandant of the Philippine Coast Guard, and a representative each of the Department of Foreign Affairs, the Department of Education, Culture and Sports, the Central Bank, the Maritime Industry Authority, the Bureau of Employment Services, a national shipping association and the Executive Director of the NSB as members. The members of the Boards shall receive allowances to be determinedbytheBoardwhichshallnotbemorethanP2,000.00 per month. The Boards shall be attached to the Department of Labor for policyandprogramcoordination.Theyshalleachbeassistedbya Secretariat headed by an Executive Director who shall be a Filipino citizen with sufficient experience in manpower administration, including overseas employment activities. The Executive Director shall be appointed by the President of the Philippines upon the recommendation of the Secretary of Labor andshallreceiveanannualsalaryasfixedbylaw.TheSecretaryof
c.
b.
d.
e.
f.
c.
Art. 22. Mandatory remittance of foreign exchange earnings. It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or
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d. Labor shall appoint the other members of the Secretariat. TheAuditorGeneralshallappointhisrepresentativetotheBoards to audit their respective accounts in accordance with auditing lawsandpertinentrulesandregulations. Art. 28. Capitalization. All applicants for authority to hire or renewal of license to recruit are required to have such substantial capitalization as determinedbytheSecretaryofLabor. Art.29.Nontransferabilityoflicenseorauthority.Nolicenseorauthority 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 designationofanyagentorrepresentativeincludingtheestablishmentof additional offices anywhere shall be subject to the prior approval of the DepartmentofLabor. Art. 30. Registration fees. The Secretary of Labor shall promulgate a schedule of fees for the registration of all applicants for license or authority. Art.31.Bonds.Allapplicantsforlicenseorauthorityshallpostsuchcash and surety bonds as determined by the Secretary of Labor to guarantee compliancewithprescribedrecruitmentprocedures,rulesandregulations, andtermsandconditionsofemploymentasmaybeappropriate. Art. 32. Fees to be paid by workers. Any person applying with a private feecharging employment agency for employment assistance shall not be charged any fee until he has obtained employment through its efforts or has actually commenced employment. Such fee shall be always covered with the appropriate receipt clearly showing the amount paid. The SecretaryofLaborshallpromulgateascheduleofallowablefees. Art. 33. Reports on employment status. Whenever the public interest requires, the Secretary of Labor may direct all persons or entities within thecoverageofthisTitletosubmitareportonthestatusofemployment, including job vacancies, details of job requisitions, separation from jobs, wages,othertermsandconditionsandotheremploymentdata.
Art. 24. Boards to issue rules and collect fees. The Boards shall issue appropriate rules and regulations to carry out their functions. They shall have the power to impose and collect fees from employers concerned, whichshallbedepositedintherespectiveaccountsofsaidBoardsandbe usedbythemexclusivelytopromotetheirobjectives. REGULATIONOFRECRUITMENTANDPLACEMENTACTIVITIES Art.25.Privatesectorparticipationintherecruitmentandplacementof workers. Pursuant to national development objectives and in order to harnessandmaximizetheuseofprivatesectorresourcesandinitiativein the development and implementation of a comprehensive employment program, the private employment sector shall participate in the recruitment and placement of workers, locally and overseas, under such guidelines, rules and regulations as may be issued by the Secretary of Labor. Art. 26. Travel agencies prohibited to recruit. Travel agencies and sales agenciesofairlinecompaniesareprohibitedfromengaginginthebusiness of recruitment and placement of workers for overseas employment whetherforprofitornot. Art. 27. Citizenship requirement. Only Filipino citizens or corporations, partnerships or entities at least seventyfive 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 placementofworkers,locallyoroverseas.
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Art.34.Prohibitedpractices.Itshallbeunlawfulforanyindividual,entity, licensee,orholderofauthority: a. To charge or accept, directly or indirectly, any amount greater thanthatspecifiedinthescheduleofallowablefeesprescribedby the Secretary of Labor, or to make a worker pay any amount greaterthanthatactuallyreceivedbyhimasaloanoradvance; Tofurnishorpublishanyfalsenoticeorinformationordocument inrelationtorecruitmentoremployment; To give any false notice, testimony, information or document or commitanyactofmisrepresentationforthepurposeofsecuringa licenseorauthorityunderthisCode. Toinduceorattempttoinduceaworkeralreadyemployedtoquit his employment in order to offer him to another unless the transferisdesignedtoliberatetheworkerfromoppressiveterms andconditionsofemployment; Toinfluenceortoattempttoinfluenceanypersonorentitynotto employanyworkerwhohasnotappliedforemploymentthrough hisagency; To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the RepublicofthePhilippines; ToobstructorattempttoobstructinspectionbytheSecretaryof Labororbyhisdulyauthorizedrepresentatives; 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 mayberequiredbytheSecretaryofLabor. 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. TobecomeanofficerormemberoftheBoardofanycorporation engagedintravelagencyortobeengageddirectlyorindirectlyin themanagementofatravelagency;and To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other thanthoseauthorizedunderthisCodeanditsimplementingrules andregulations.
k.
b. c. d.
e. f.
g. h.
i.
Sec. 6. DEFINITIONS. For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, procuring workers and includes referring, contact services, promisingoradvertisingforemploymentabroad,whetherforprofitornot, when undertaken by a nonlicense or nonholder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended,otherwiseknownastheLaborCodeofthePhilippines.Provided, that such nonlicense or nonholder, 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 persons, whether a nonlicensee, nonholder, licensee orholderofauthority. (a)Tochargeoracceptdirectlyorindirectlyanyamountgreaterthanthe specifiedinthescheduleofallowablefeesprescribedbytheSecretaryof LaborandEmployment,ortomakeaworkerpayanyamountgreaterthan thatactuallyreceivedbyhimasaloanoradvance; (b) To furnish or publish any false notice or information or document in relationtorecruitmentoremployment; (c)Togiveanyfalsenotice,testimony,informationordocumentorcommit any act of misrepresentation for the purpose of securing a license or authorityundertheLaborCode;
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(d)Toinduceorattempttoinduceaworkeralreadyemployedtoquithis employmentinordertoofferhimanotherunlessthetransferisdesigned toliberateaworkerfromoppressivetermsandconditionsofemployment; (e) To influence or attempt to influence any persons or entity not to employ any worker who has not applied for employment through his agency; (f)Toengageintherecruitmentofplacementofworkersinjobsharmfulto publichealthormoralityortodignityoftheRepublicofthePhilippines; (g)ToobstructorattempttoobstructinspectionbytheSecretaryofLabor andEmploymentorbyhisdulyauthorizedrepresentative; (h) To fail to submit reports on the status of employment, placement vacancies, remittances of foreign exchange earnings, separations from jobs,departuresandsuchothermattersorinformationasmayberequired bytheSecretaryofLaborandEmployment; (i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approvaloftheDepartmentofLaborandEmployment; (j)Foranofficeroragentofarecruitmentorplacementagencytobecome an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly on indirectly in the management of a travelagency; (k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under the Labor Code and its implementing rules and regulations; (l) Failure to actually deploy without valid reasons as determined by the DepartmentofLaborandEmployment;and (m) Failure to reimburse expenses incurred by the workers 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 largescaleshallbeconsideredasoffenseinvolvingeconomicsabotage. Illegal recruitment is deemed committed by a syndicate carried out by a group of three (3) or more persons conspiring or confederating with one another.Itisdeemedcommittedinlargescaleifcommittedagainstthree (3)ormorepersonsindividuallyorasagroup. The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers havingcontrol,managementordirectionoftheirbusinessshallbeliable.
Licensedrecruiter (13acts)
Nonlicensedrecruiter (22acts)
NOTES: A nonlicensee can commit 24 prohibited acts11 acts of recruitment and placement, 11 acts of prohibited practice plus the2additionsfromRA8042 A licensee can commit 13 prohibited acts (the 11 prohibited practicesenumeratedandthe2additions)
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January25,2006:contractbetweentheagencyandtheprincipal has been impliedly revoked given that the principal has directly hiredthemigrantworkeraftertheexpirationoffirstcontract Pandemanv.___ManagementServices,21June2005:Pandeman isnotaninsuranceagentundertheCorporationCode.Thus,heis notliableassuch. PCL shipping case, 2006: purely salaries and allowances are not includedincomputationfortheunexpiredterm;underovertime paydoesn'trelyonwhethertheycanleavetheshipbutwhether theyrenderedservicemorethan8hours Any compromise/amicable settlement or voluntary agreement on money claimsinclusiveofdamagesunderthissectionshallbepaidwithinfour(4) monthsfromtheapprovalofthesettlementbytheappropriateauthority. In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portionofhisemploymentcontractorforthree(3)monthsforeveryyear oftheunexpiredterm,whicheverisless. Noncompliance with the mandatory periods for resolutions of cases providedunderthissectionshallsubjecttheresponsibleofficialstoanyor allofthefollowingpenalties: (a) The salary of any such official who fails to render his decision or resolutionswithintheprescribedperiodshallbe,orcausedtobe,withheld untilthesaidofficialcompliestherewith; (b)Suspensionfornotmorethanninety(90)days;or (c)Dismissalfromtheservicewithdisqualificationstoholdanyappointive publicofficeforfive(5)years. Provided, however, that the penalties herein provided shall be without prejudice to any liability which any such official may have incurred under otherexistinglawsorrulesandregulationsasaconsequenceofviolating theprovisionsofthisparagraph. SUMMARY OF SITUATIONS OR KINDS OF CLAIMS CONTEMPLATED IN SECTION10 (SEAGULLCASEAPRIL2,2007) 1. If death occurs while on board vessel, then it is compensable (there is jurisprudence saying that the death mustnt be due to thefaultofseafarer)regardlessofexistenceoffaultofseafarer
SEC. 10. MONEY CLAIMS. Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC)shallhavetheoriginalandexclusivejurisdictiontohearanddecide, within ninety (90) calendar days after filing of the complaint, the claims arisingoutofanemployeremployeerelationshiporbyvirtueofanylawor contract involving Filipino workers for overseas deployment including claimsforactual,moral,exemplaryandotherformsofdamages. The liability of the principal/employer and the recruitment/placement agencyforanyandallclaimsunderthissectionshallbejointandseveral. This provisions shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as providedbylaw,shallbeanswerableforallmoneyclaimsordamagesthat maybeawardedtotheworkers.Iftherecruitment/placementagencyisa juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporationorpartnershipfortheaforesaidclaimsanddamages. Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendmentormodificationmadelocallyorinaforeigncountryofthesaid contract.
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2. 3. If death occurs while being treated abroad, then it is as well compensable If death occurs after repatriation, but while being treated, it is compensable Ifdeathoccursaftertreatment,itisnolongercompensable THERECRUITMENTAGENCYISDEEMEDTOBEANEMPLOYER ThisisincontemplationofArticles97(b)and212 Thisistherationaleforthejointandseveralliabilityoftheagency withtheprincipalemployer TOLOSACASE An employees widow who sues the principal employer and recruitmentagencyfordeathclaims Deathclaimsconstitutequasidelicts JurisdictionwasheldtobeundertheRTC WRONG WRONG WRONG!!! Jurisdiction should be under the LaborArbitersincethishasbeenprincipallylodgeduponthem ATHENACASE MARSAMANMANNINGCASE 15APRIL2005 29AUGUST1999 Villanos is a landbased migrant Hewasemployedasaseafarerfor1 worker with a twoyear contract or year. He was illegally dismissed 24months after two months, leaving an unexpiredportionof10months. Hewasillegallydismissedaftertwo months and 2 days, having an The court allowed Marsaman unexpired portion of 1 year and 9 salariesfortheunexpiredportionof months. 10 months. It didn't follow the 3 months for every year of service The Court was wrong in deciding because the period involved is less this case. It applied 3 months for than1year. everyyearofserviceforthe1year unexpired period and unexpired However, some cases following, portion of contract for the 9 erroneously applied the 3 months months. for every year of unexpired term. The question begged to be answer This also erroneously applied Labor is how can you count each year if Codetomigrantworkers,forgetting the unexpired period is less than 1
4. (GAOCHINGCASE437SCRA608) 1. Deathoccursduetoworkingconditions 2. Deathoccursduetocontractingofdisease 3. Deathoccurswithoutfaultoftheworker 4. Deathoccursasincidenceofwork X WAS ILLEGALLY DISMISSED WHILE WORKING IN SAUDI ARABIA. WHERESHOULDTHECASEBEFILED? TheLaborArbiter AGAINSTWHOMSHOULDTHECASEBEFILED? Againsttheprincipalemployerandtherecruitmentagency Thetwoarejointandseverallyliable SECTION 10 APPARENTLY SHOWS THAT IT IS THE LABOR ARBITER THAT HAS JURISDICTION OVER REVOCATION OF AUTHORITY OR LICENSE FOR OVERSEASEMPLOYMENT Butaccordingly,ithasbeenagreeduponthatitisthePOEAwhich hasjurisdictionoverthiskindofmatters PERFORMANCE BOND ANSWERS FOR MONEY CLAIMS AGAINST THE AGENCY Theperformancebondtobefiledbytherecruitment/placement agency, as provided by law, shall be answerable for all money claimsordamagesthatmaybeawardedtotheworkers. If the recruitment/placement agency is a juridical being, the corporateofficersanddirectorsandpartnersasthecasemaybe, shall themselves be jointly and solidarily liable with the corporationorpartnershipfortheaforesaidclaimsanddamages.
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about RA 8042, which is the law year. applicable DOUGLASMILLARESCASE328SCRA79(2000) Millares was a seafarer and in the MR, the decision was adverse totheseafarer 1. Compensationincome 2. Deathbenefits 3. Illnessorinjury 4. Disabilitybenefitspermanentortotaldisability 5. 8 February 2007 Prudential Shipping: guided by Section 20 of thePOEAStandardcontract,thedeathofaseamnduringterm ofemploiyment,thefamilyshallbeentitledtothebenefits.If the seafarer dies before termination, the family shall be entitled.Otherwise,theywillnotbeentitled. 6. Rivera v. Wallen 474 SCRA 174 August 2005: the benefit doesn'tcomeautomatically;theseafarermustsubjecthimself to medicl examination as provided for in the contract. He is also obliged to go to the agency that will lead him to an employeraccreditedhospital.474174 7. SeagullShippingcase333SCRA236 8. Andinadditiontotheabove,thebenefitsmigrantworkersare entitled to is governed by the POEA approved contract and in th thiscontract,thereisnomentionofthe13 monthpay.Thus, migrantworkersarenotentitledto13mothpay. SEC.15.REPATRIATIONOFWORKERS;EMERGENCYREPATRIATIONFUND. Therepatriationoftheworkerandthetransportofhispersonalbelongings shall be the primary responsibility of the agency which recruited or deployedtheworkeroverseas.Allcostsattendanttorepatriationshallbe bornebyorchargedtotheagencyconcernedand/oritsprincipal.Likewise, therepatriationofremainsandtransportofthepersonalbelongingsofa deceased worker and all costs attendant thereto shall be borne by the principaland/orlocalagency.However,incaseswheretheterminationof employment is due solely to the fault of the worker, the principal/employer or agency shall not in any manner be responsible for therepatriationoftheformerand/orhisbelongings. The Overseas Workers Welfare Administration (OWWA), in coordination ith appropriate international agencies, shall undertake the repatriation of workersincasesofwar,epidemic,disastersorcalamities,naturalorman made,andothersimilareventswithoutprejudicetoreimbursementbythe responsible principal or agency. However, in cases where the principal or recruitmentagencycannotbeidentified,allcostsattendanttorepatriation shallbebornebytheOWWA. For this purposes, there is hereby created and established an emergency repatriationfundundertheadministrationcontrolandsupervisionofthe OWWA,initiallytoconsistofonehundredmillionpesos(P100,000,000.00), inclusiveofoutstandingbalances. SEC. 16. MANDATORY REPATRIATION OF UNDERAGE MIGRANT WORKERS.Upondiscoveryorbeinginformedofthepresenceofmigrant workers whose actual ages fall below the minimum age requirement for overseas deployment, the responsible officers in the foreign service shall without delay repatriate said workers and advise the Department of Foreign Affairs through the fastest means of communication availavle of suchdiscoveryandotherrelevantinformation. IMELDA WAS AN OVERSEAS CONTRACT WORKER AND SHE BECAME DEPRESSED. SHE WANTED TO GO HOME. WHO WILL SHOULDER THE COSTSOFHERREPATRIATION? General rule is that all costs attendant to repatriation shall be bornebyorchargedtotheagencyconcernedand/oritsprincipal. Likewise, the repatriation of remains and transport of the personalbelongingsofadeceasedworkerandallcostsattendant theretoshallbebornebytheprincipaland/orlocalagency.
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However, in cases where the termination of employment is due solelytothefaultoftheworker,theprincipal/employeroragency shallnotinanymannerberesponsiblefortherepatriationofthe formerand/orhisbelongings. Art.38.Illegalrecruitment. a. Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by nonlicenseesornonholdersofauthority,shallbedeemedillegal andpunishableunderArticle39ofthisCode.TheDepartmentof 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 scaleshallbeconsideredanoffenseinvolvingeconomicsabotage and shall be penalized in accordance with Article 39 hereof. Illegalrecruitmentisdeemedcommittedbyasyndicateifcarried 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 detentionofsuchnonlicenseeornonholderofauthorityifafter investigation it is determined that his activities constitute a dangertonationalsecurityandpublicorderorwillleadtofurther exploitationofjobseekers.TheSecretaryshallorderthesearchof 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 authorizedtodoso. Art.39.Penalties.
*SicknessallowancesareprovidedforbythePOEAapprovedcontract Art. 35. Suspension and/or cancellation of license or authority. The MinisterofLaborshallhavethepowertosuspendorcancelanylicenseor authority to recruit employees for overseas employment for violation of rules and regulations issued by the Ministry of Labor, the Overseas EmploymentDevelopmentBoard,orforviolationoftheprovisionsofthis andotherapplicablelaws,GeneralOrdersandLettersofInstructions. SUSPENSIONANDCANCELLATIONOFLICENSE Suspension and lifting of preventive suspension, this is lodged with the POEA administrator, as per provided for in the 1991 RULESANDREGULATIONSONOVERSEASEMPLOYMENT Cancellation of license or authority to recruit employees for overseasemploymentislodgedwiththeSecretaryofLaborasper providedforinArticle35 MISCELLANEOUSPROVISIONS Art.36.Regulatorypower.TheSecretaryofLaborshallhavethepowerto restrict and regulate the recruitment and placement activities of all agencieswithinthecoverageofthisTitleandisherebyauthorizedtoissue orders and promulgate rules and regulations to carry out the objectives andimplementtheprovisionsofthisTitle. Art. 37. Visitorial Power. The Secretary of Labor or his duly authorized representativesmay,atanytime,inspectthepremises,booksofaccounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violation of any provisionsofthisTitle.
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a. The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P1000,000.00) shall be imposed if illegal recruitmentconstituteseconomicsabotageasdefinedherein; b. Any licensee or holder of authority found violating or causing anothertoviolateanyprovisionofthisTitleoritsimplementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than two years nor more thanfiveyearsorafineofnotlessthanP10,000normorethan P50,000, or both such imprisonment and fine, at the discretion ofthecourt; 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,sufferthepenaltyofimprisonmentofnotlessthanfour years nor more than eight years or a fine of not less than P20,000normorethanP100,000orbothsuchimprisonmentand fine,atthediscretionofthecourt; d. Iftheoffenderisacorporation,partnership,associationorentity, 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 SeamenBoard,asthecasemaybe,bothofwhichareauthorized tousethesameexclusivelytopromotetheirobjectives. TESDALAW (RA7796ANDIRR) STATEMENTOFGOALSANDOBJECTIVES 1. Promote and strengthen the quality of technical education and skills development programs to attain international competitiveness; 2. Focustechnicaleducationandskillsdevelopmentonmeetingthe changingdemandsforqualitymiddlelevelmanpower; 3. Encourage critical and creative thinking by disseminating the scientificandtechnicalknowledgebaseofmiddlelevelmanpower developmentprograms; 4. Recognizeandencouragethecomplementaryrolesofpublicand privateinstitutionsintechnicaleducationandskillsdevelopment andtrainingsystems;and 5. Inculcate desirable values through the development of moral character with emphasis on work ethic, selfdiscipline, self relianceandnationalism. DEFINITIONOFTERMS(SECTION4) a. "Skill"shallmeantheacquiredandpracticedabilitytocarryout ataskorjob; b. "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 qualificationsforajoborrangeofjobsinagivenoccupational area; c. "Technical Education" shall refer to the education process designed at postsecondary and lower tertiary levels, officially recognized as nondegree programs aimed at preparing
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technicians,paraprofessionalsandothercategoriesofmiddle levelworkersbyprovidingthemwithabroadrangeofgeneral education,theoretical,scientificandtechnologicalstudies,and relatedjobskillstraining; d. "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 canbeacquiredthroughworkexperienceand/ortraining; "MiddleLevelManpower"referstothose: f. 1.who have acquired practical skills and knowledge through formal or nonformal education and training equivalent to at least a secondary education but preferably at postsecondary educationwithacorrespondingdegreeofdiploma;or 2.skilled workers who have become highly competent in their tradeorcraftasattestedbyindustry; "Private Enterprises" refers to an economic system under whichpropertyofallkindscanbeprivatelyownedandinwhich individuals, alone or in association with another, can embark on a business activity. This includes industrial, agricultural, or agroindustrial establishments engaged in the production, manufacturing, processing, repacking or assembly of goods includingserviceorientedenterprises; "Trainers" shall mean persons who direct the practice of skills towardsimmediateimprovementinsometask; "Trainors/trainers"shallmeanpersonswhoprovidetrainingto trainers aimed at developing the latter's capacities for imparting attitudes, knowledge, skills and behavior patters o. m. "Apprentice" is a person undergoing training for an approved apprenticeable occupation during an apprenticeship agreement; n. g. h. "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 responsibilitiesofeachparty; "Apprenticeable Occupation" is an occupation officially endorsedbyatripartitebodyandapprovedforapprenticeable bytheAuthority; "Learners" refers to persons hired as trainees in semiskilled andotherindustrialoccupationswhicharenonapprenticeable. LearnershipprogramsmustbeapprovedbytheAuthority; "UserLed" or "MarketDriven Strategy" refers to a strategy which promotes strengthened linkages between educational/training institutions and industry to ensure that appropriate skills and knowledge are provided by the educationalsystem; required for specific jobs, tasks, occupations or group of relatedoccupations. k. "Trainees" shall mean persons who are participants in a vocational,administrativeortechnicaltrainingprogramforthe purposeofacquiringanddevelopingjobrelatedskills; "Apprenticeship"trainingwithinemploymentwithcompulsory relatedtheoreticalinstructioninvolvingacontractbetweenan apprentice and an employer on an approved apprenticeable occupation;
l.
e.
p. q.
i. j.
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r. "Dual System/Training" refers to a delivery system of quality technical and vocational education which requires training to be carried out alternately in two venues: inschool and in the production plant. In school training provides the trainee the theoretical foundation, basic training, guidance and human formation, while inplant training develops his skills and proficiency in actual work conditions as it continues to inculcatepersonaldisciplineandworkvalues; "Levy Grant System" refers to a legal contribution from participating employers who would be beneficiaries of the program (often as a percentage of the payroll) which is subsequently turned over or rebated to enterprises offering employeetrainingprograms. Member DirectorGeneraloftheTESDASecretariat Member In addition, the President of the Philippines shall appoint the following membersfromtheprivatesector: 1. Two (2) representatives, from the employer/industry organization,oneofwhomshallbeawoman; 2. Three (3) representatives, from the labor sector, one of whom shallbeawoman;and 3. Two (2) representatives of the national associations of private technicalvocational education and training institutions, one of whomshallbeawomen. As soon as all the members of the private sector are appointed, theyshallsoorganizedthemselvesthatthetermofofficeofone third(1/3)oftheirnumbershallexpireeveryyear. The member from the private sector appointed thereafter to fill vacanciescausedbyexpirationoftermsshallholdofficeforthree (3)years. The President of the Philippines may, however, revise the membershipoftheTESDABoard,wheneverthePresidentdeems itnecessaryfortheeffectiveperformanceoftheBoard'sfunctions throughanadministrativeorder. TheTESDABoardshallmeetatleasttwiceayear,orasfrequently asmaybedeemednecessarybyitsChairperson. IntheabsenceoftheChairperson,aCoChairpersonshallpreside. In case any member of the Board representing the Government cannot attend the meeting, he or she shall be regularly represented by an undersecretary or deputydirector general, as the case may be, to be designated by such member for the purpose. The benefits, privileges and emoluments of the Board shall be consistentwithexistinglawsandrules. POWERSANDFUNCTIONSOFTHEBOARD 6.
s.
TechnicalEducationandSkillsDevelopmentAuthority(TESDA) National Manpower and Youth Council (NMYC), the Bureau of TechnicalandVocationalEducation(BTVE)andthepersonneland functions pertaining to technicalvocational education in the regional offices of the Department of Education, Culture and Sports (DECS) and the apprenticeship program of the Bureau of LocalEmploymentoftheDepartmentofLaborandEmployment. The Authority shall be composed of the TESDA Board and the TESDASecretariat. COMPOSITIONOFTHETESDABOARD 1. TheSecretaryofLaborandEmployment Chairperson 2. SecretaryofEducation,CultureandSports CoChairperson 3. SecretaryofTradeandIndustry CoChairperson 4. SecretaryofAgricultureMember 5. SecretaryofInteriorandLocalGovernment
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The Authority shall primarily be responsible for formulating, continuing, coordinated and fully integrated technical education and skills development policies, plans and programs taking into consideration the following: The State policy declared herein of giving new direction and thrusts to efforts in developing the quality of Filipino human resourcethroughtechnicaleducationandskillsdevelopment; The implementation of the abovementioned policy requires the coordination and operation of policies, plans, and programs of differentconcernedsectorsofPhilippinesociety; Equal participation of representatives of industry groups, trade associations, employers, workers and government shall be made the rule in order to ensure that urgent needs and recommendationsarereadilyaddressed;and Improvedlinkagesbetweenindustry,laborandgovernmentshall begivenpriorityintheformulationofanynationallevelplan. TheBoard,shallhavethefollowingpowers: 1. Promulgate, after due consultation with industry groups, trade associations, employers, workers, policies, plans, programs and guidelines as may be necessary for the effective implementation ofthisAct; 2. Organize and constitute various standing committees, subsidiary groups, or technical working groups for efficient integration, coordination and monitoring technical education and skills developmentprogramsatthenational,regional,andlocallevels; 3. Enter into, make, execute, perform and carryout domestic and foreigncontractssubjecttoexistinglaws,rulesandregulations. 4. Restructuretheentiresubsectorconsistingofallinstitutionsand programsinvolvedinthepromotionanddevelopmentofmiddle level manpower through upgrading, merger and/or phaseout followingauserledstrategy; 5. Approvetradeskillsstandardsandtradetestsasestablishedand conductedbyprivateindustries; 6. 7. 8. 9. 10. Establishandadministerasystemofaccreditationofbothpublic andprivateinstitutions; Establish, develop and support institutions' trainors' training and/orprograms; Lend support and encourage increasing utilization of the dual trainingsystemasprovidedforbyRepublicAct.No.7686; Exact reasonable fees and charges for such tests and trainings conducted and retain such earnings for its own use, subject to guidelinespromulgatedbytheAuthority; Allocate resources, based on the Secretariat's recommendations for the programs and subjects it shall undertake pursuant to approved National Technical Education and Skills Development Plan; Determine and approve systematic funding schemes such as the Levy and Grant scheme for technical education and skills developmentpurposes; Create, when deemed necessary, an Advisory Committee which shall provide expert and technical advice to the Board to be chosenfromtheacademeandtheprivatesector:Provided,That in case the Advisory Committee is created, the Board is hereby authorized to set aside a portion of its appropriation for its operation;and Perform such other duties and functions necessary to carry out the provisions of this Act consistent with the purposes of the creationofTESDA.
11. 12.
13.
POWERTOREVIEWANDRECOMMENDACTION. The Authority shall review and recommend action to concerned authorities on proposed technical assistance programs and grantsinaid for technical education or skills development, or both, including those which may be entered into between the Government of the Philippines and other nations, including internationalandforeignorganizations,bothhereandabroad. TESDASECRETARIAT
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1. To establish and maintain a planning process and formulate a nationaltechnicaleducationandskillsdevelopmentplaninwhich the memberagencies and other concerned entities of the Authorityatvariouslevelsparticipate; To provide analytical inputs to policy decisionmaking of the Authority on allocation of resources and institutional roles and responsibilitiesasshallbeembodiedinannualagenciestechnical education and skills development plans, in accordance with the manpowerplanformiddlelevelskilledworkerasapprovedbythe Authority; To recommend measures, and implement the same upon approval by the Authority, for the effective and efficient implementation of the national technical education and skills developmentplan; To propose to the Authority the specific allocation of resources for the programs and projects it shall undertake pursuant to approved national technical education and skills development plan; To submit to the Authority periodic reports on the progress and accomplishment of work programs of implementation of plans andpoliciesfortechnicaleducationandskillsdevelopment; ToprepareforapprovalbytheAuthorityanannualreporttothe Presidentontechnicaleducationandskillsdevelopment; To implement and administer the apprenticeship program as providedforinSection18ofhisAct; To prepare and implement upon approval by the Authority a program for the training of trainers, supervisors, planners and managersasprovidedforinSection23ofthisAct; To enter into agreement to implement approved plans and programs and perform activities as shall implement the declared policyofthisAct;andtoperformsuchotherfunctionsandduties asmaybeassignedbytheBoard. TheTESDASecretariatshallbeheadedbyaDirectorGeneral,who shall likewise be a member of the TESDA Board. The Director GeneralshallbeappointedbythePresidentofthePhilippinesand shallenjoythebenefits,privilegesandemolumentsequivalentto therankofUndersecretary. AsChiefExecutiveOfficeroftheTESDASecretariat,theDirector General shall exercise general supervision and control over its technicalandadministrativepersonnel.
2.
3.
4.
5. 6. 7. 8.
9.
DIRECTORGENERAL
SEC.12.DeputyDirectorsGeneral.TheDirectorGeneralshallbeassisted bytwo(2)DeputyDirectorsGeneraltobeappointedbythePresidentof the Philippines on recommendation of the TESDA Board. One to be responsible for Vocational and Technical Education and Training and one toberesponsibleforPoliciesandPlanning. The Deputy DirectorsGeneral shall enjoy the benefits, privileges and emolumentsequivalenttotherankofAssistantSecretary. SEC.13.ChiefofServicesforAdministration.TheDirectorGeneralshall also be assisted by a Chief of Services for Administration who shall be a CareerCivilServiceOfficialtobeappointedbytheTESDABoard. SEC. 14. Structural Organization and Personnel. The TESDA Secretariat, inadditiontotheofficesoftheDirectorGeneral,DeputyDirectorGeneral andChiefofServicesforAdministrationshallbe composedofthefollowingofficestobeheadedbyanExecutiveDirectorto beappointedbythe DirectorGeneralandshallhavetherankandemolumentsofDirectorIV. PlanningOffice(PO)ThePlanningOfficeshallbeundertheOfficeofthe DeputyDirectorGeneralandshallhavethefollowingfunctions: 1.Todesignandestablishplanningprocessesandmethodologieswhich will particularly enhance the efficiency of resource allocation decisions withinthetechnicaleducationandskillsdevelopmentsector;
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2. To lead in the preparation and periodic updating of a national plan for technical education and skills development which shall become the basisforresourceallocationdecisionswithinthesector; 3.Toconductresearchers,studiesanddevelopinformationsystemsfor effectiveandefficientplanningandpolicymakingwithinthesector; 4.Todevelopandimplementprogramsandprojectsaimedatbuilding upplanningcapabilitiesofvariousinstitutionswithinthesector;and 5. To perform such other powers and functions as may be authorized bytheAuthority. SkillsStandardsandCertificationOffice(SSCO)TheSkillsStandardsand Certification Office shall be under the office of the Deputy Director Generalandshallhavethefollowingfunctions: 1.Todevelopandestablishanationalsystemofskillsstandardization, testingandcertificationinthecountry; 2. To design, innovate and adopt processes and methodologies whereby industry groups and workers' guilds take note on progressively the responsibility of setting skills standards for identified occupational areas, and the local government units actively participate in promoting skillsstandards,testingandcertification; 3. To establish and implement a system of accrediting private enterprises, workers' associations and guilds and public institutions to serveasskillstestingvenues; 4.Toconductresearchanddevelopmentonvariousoccupationalareas in order to recommend policies, rules and regulations for effective and efficient skills standardization, testing and certification system in the country;and 5.Toperformsuchotherdutiesandfunctionsasmaybeauthorized. National Institute for Technical Vocational and Education Training (NITVET) The National Institute for Technical Vocational and Education Training to be under the office of the Deputy DirectorGeneral and shall havethefollowingfunctions: 1.Toserveastheresearchanddevelopmentarmofthegovernmentin thefieldofthetechnicalvocationaleducationandtraining; 2. To develop curricula and program standards for various technical vocationaleducationandtrainingareas; 3. To develop and implement an integrated program for continuing development of trainors, teachers and instructors within the technical educationandskillsdevelopmentsector; 4. To develop programs and project which will build up institutional capabilitieswithinthesector;and 5.Toperformsuchotherpowersandfunctionsasmaybeauthorized. OfficeofFormalTechnicalVocationalEducationandTraining(OFTVET) The Office of Formal Technical Vocational Education and Training to be under the office of the Deputy DirectorGeneral and shall have the followingfunctions: 1. To provide policies, measures and guidelines for effective and efficient administration of formal technicalvocational education and trainingprogramsimplementedbyvariousinstitutionsinthecountry; 2. To establish and maintain a system for accrediting, coordinating, integrating, monitoring and evaluating the different formal technical vocationaleducationandtrainingprogramsvisvistheapprovednational technicaleducationandskillsdevelopmentplan;
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3. To establish and maintain a network of institutions engaged in institutionalizedtechnicalvocationaleducationandtraining,particularly withlocalgovernmentunits;and 4.Toperformsuchotherdutiesandfunctionsasmaybeauthorized. Office of the NonFormal TechnicalVocational Education and Training (ONFTVET)TheOfficeoftheNonFormalTechnicalVocationalEducation and Training to be under the office of the Deputy DirectorGeneral and shallhavethefollowingfunctions: 1. To provide direction, policies and guidelines for effective implementation of nonformal communitybased technicalvocational educationandtraining; 2. To accredit, coordinate, monitor and evaluate various nonformal technicalvocational education and training programs implemented by variousinstitutionsparticularly,bylocalgovernmentunits; 3. To establish and maintain a network of institutions including local government units, nongovernment organizations implementing non formal,communitybasedtechnicalvocationaleducationandtraining; 4.Toperformsuchotherpowersandfunctionsasmaybeauthorized. Office of Apprenticeship (OA) The Office of Apprenticeship shall be under the office of the Deputy DirectorGeneral and shall have the followingfunctions: 1.Toprovidedirection,policiesandguidelinesontheimplementation oftheapprenticeshipsystem; 2. To accredit, coordinate, monitor and evaluate all apprenticeship schemes and program implemented by various institutions and enterprises; 3. To establish a network of institutions and enterprises conducting apprenticeshipschemesandprograms; 4.Toperformsuchotherpowersandfunctionsasmaybeauthorized. RegionalTESDAOfficesTheRegionalTESDAOfficesshallbeheadedby Regional Directors with the rank and emoluments of Director IV to be appointedbythePresident.TheRegionalTESDAOfficesshallbeunderthe direct control of the DirectorGeneral and shall have the following functions: 1. To serve as Secretariat to Regional Technical Education Skills Development(TESDA)Committee; 2. To provide effective supervision, coordination and integration of technicaleducationandskillsdevelopmentprograms,projectsandrelated activitiesintheirrespectivejurisdictions; 3.TodevelopandrecommendTESDAprogramsforregionalandlocal levelimplementationwithinthepoliciessetbytheAuthority. 4. To perform such other duties and functions as may be deemed necessary. SEC. 15. The Provincial TESDA Offices. The Provincial Offices shall be headed by Skill Development Officers who shall have the rank and emolumentsofaDirectorIII. The Provincial TESDA Offices shall be under the direct control of the DirectorGeneralandshallhavethefollowingfunctions:
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1.ToserveasSecretariattoProvincialTESDACommittees; 2. To provide technical assistance particularly to local government units for effective supervisions, coordination, integration and monitoring of technicalvocational education and training programs within their localities; 3.ToreviewandrecommendTESDAProgramsforimplementationwithin theirlocalities;and 4. To perform such other duties and functions as may be authorized. Furthermore, the TESDA Secretariat maybe further composed by such offices as may be deemed necessary by the Authority. The Director Generalshallappointsuchpersonnelnecessarytocarryouttheobjectives, policies and functions of the Authority subject to civil service laws, rules andregulations. SEC. 16. Compliance with the Salaries Standardization Law. The compensation and emoluments of the officials and employees of the Authority shall be in accordance with the salary standardization law and other applicable laws under the national compensation and classification plan. SEC.17.ConsultantsandTechnicalAssistance,PublicationandResearch. Inpursuingitsobjectives,theAuthorityisherebyauthorizedtosetaside a portion of its appropriation for the hiring of services of qualified consultants,andprivateorganizationsforresearchworkandpublicationin thefieldoftechnicaleducationandskillsdevelopment.Itshallavailitself oftheservicesofotheragenciesoftheGovernmentasmayberequired. SEC. 18. Transfer of the Apprenticeship Program. The Apprenticeship Program of the Bureau of Local Employment of the Department of Labor and Employment shall be transferred to the Authority which shall implementandadministersaidprograminaccordancewithexistinglaws, rulesandregulations. SEC. 19. Technical Education and Skills Development Committees. The Authority shall establish Technical Education and Skills Development Committeesattheregionalandlocallevelstocoordinateandmonitorthe delivery of all skills development activities by the public and private sectors.ThesecommitteesshalllikewiseserveastheTechnicalEducation 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 GeneralsubjecttotheguidelinestobepromulgatedbytheAuthority. SEC.20.SkillsDevelopmentCenters.TheAuthorityshallstrengthenthe network of national, regional and local skills training centers for the purposeofpromotingskillsdevelopment.Thisnetworkshallincludeskills training centers in vocational and technical schools, technical institutes, polytechniccolleges,andallotherdulyaccreditedpublicandprivatedual system educational institutions. The technical education and skills developmentcentersshallbeadministeredandoperatedundersuchrules andregulationsasmaybeestablishedbytheAuthorityinaccordancewith theNationalTechnicalEducationandSkillsDevelopmentPlan. SEC.21.FormulationofaComprehensiveDevelopmentPlanforMiddle Level Manpower. The Authority shall formulate a comprehensive development plan for middlelevel manpower based on a national employmentplanorpoliciesfortheoptimumallocation,developmentand utilization of skilled workers for employment entrepreneurship and technology development for economic and social growth. This plan shall afteradoptionbytheAuthoritybeupdatedperiodicallyandsubmittedto the President of the Philippines for approval. Thereafter, it shall be the plan for the technical education and skills development for the entire country within the framework of the National Development Plan. The AuthorityshalldirecttheTESDASecretariattocallonitsmemberagencies, the private sector and the academe to assist in this effort. The comprehensive plan shall provide for a reformed industrybased training
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program including apprenticeship, dual training system and other similar schemesintendedto: Promotemaximumprotectionandwelfareoftheworkertrainee; Improvethequalityandrelevanceandsocialaccountabilityoftechnical educationandskillsdevelopment; Acceleratetheemploymentgenerationeffortofthegovernment;and Expand the range of opportunities for upward social mobility of the schoolgoing population beyond the traditional higher levels of formal education. All government and nongovernment agencies receiving financialandtechnicalassistancefromthegovernmentshallberequiredto formulate their respective annual agency technical education and skills development plan in line with the national technical education and skills development plan. The budget to support such plans shall be subject to review and endorsement by the Authority to the Department of Budget and Management. The Authority shall evaluate the efficiency and effectiveness of agencies skills development program and schemes to makethemconformwiththequantitativeandqualitativeobjectivesofthe nationaltechnicaleducationandskillsdevelopmentplan. SEC. 22. Establishment and Administration of National Trade Skills Standards. There shall be national occupational skills standards to be establishedbyTESDAaccreditedindustrycommittees.TheAuthorityshall developandimplementacertificationandaccreditationprograminwhich private industry groups and trade associations are accredited to conduct approved trade tests, and the local government units to promote such trade testing activities in their respective areas in accordance with the guidelines to be set by the Authority. The Secretary of Labor and Employment shall determine the occupational trades for mandatory certification.Allcertificatesrelatingtothenationaltradeskillstestingand certification system shall be issued by the Authority through the TESDA Secretariat. SEC.23.AdministrationofTrainingPrograms.TheAuthorityshalldesign and administer training programs and schemes the will develop the capabilitiesofpublicandprivateinstitutionstoprovidequalityandcost effective technical education and skills development and related opportunities.Suchtrainingprogramsandschemesshallincludeteacher's trainors' training, skills training for entrepreneur development and technologydevelopment,costeffectivetraininginoccupationaltradesand related fields of employment, and value development as an integral componentofallskillstrainingprograms. SEC.24.AssistancetoEmployersandOrganizations.TheAuthorityshall assist any employer or organization engaged in skills training schemes designed to attain its objectives under rules and regulations which the Authorityshallestablishforthispurpose. SEC.25.CoordinationofAllSkillsTrainingSchemes.Inordertointegrate the national skills development efforts, all technical education and skills trainingschemesasprovidedforinthisActshallbecoordinatedwiththe Authority particularly those having to do with the setting of trade skills standards.Forthispurpose,existingtechnicaleducationandskillstraining programs in the Government and in the private sector, specifically those whollyorpartlyfinancedwithgovernmentfunds,shallbereportedtothe Authority which shall assess and evaluate such programs to ensure their efficiencyandeffectiveness. SEC. 26. Industry Boards. The Authority shall establish effective and efficient institutional arrangements with industry boards and such other bodies or associations to provide direct participation of employers and workersinthedesignandimplementationofskillsdevelopmentschemes, trade skills standardization and certification and such other functions in thefulfillmentoftheAuthority'sobjectives. SEC.27.IncentivesSchemes.TheAuthorityshalldevelopandadminister appropriate incentive schemes to encourage government and private
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industriesandinstitutionstoprovidehighqualitytechnicaleducationand skillsdevelopmentopportunities. SEC. 28. Skills Development Opportunities. The Authority shall design and implement an effective and efficient delivery system for quality technical education and skills development opportunities particularly in disadvantaged sectors, with new tools of wealth creation and with the capability to take on higher valueadded gainful activities and to share equitablyinproductivitygains. SEC.29.DevolutionofTESDA'sTrainingFunctiontoLocalGovernments. InestablishingthedeliverysystemprovidedforintheprecedingSection, the Authority shall formulate, implement and finance a specific plan to developthecapabilityoflocalgovernmentunitstoassumeultimatelythe responsibility for effectively providing communitybased technical education and skills development opportunities: Provided, however, That there shall be formulated and implemented, an effective and timely retrainingofTESDApersonnelthatwouldbeaffectedbythedevolutionto ensuretheirbeingretainediftheconcernedlocalgovernmentunitswould notbeabletoabsorbthem. SEC. 30. Skills Olympics. To promote quality skills development in the country and with the view of participating in international skills competitions, the Authority, with the active participation of private industries,shallorganizeandconductannualNationalSkillsOlympics.The Authority, through the TESDA Secretariat, shall promulgate the necessary rules and guidelines for the effective and efficient conduct of Annual National Skills Olympics and for the country's participation in internationalsskillsolympics. SEC. 31. The TESDA Development Fund. A TESDA Development Fund is hereby established, to be managed/administered by the Authority, the incomefromwhichshallbeutilizedexclusivelyinawardingofgrantsand providing assistance to training institutions, industries, local government units for upgrading their capabilities and to develop and implement training and trainingrelated activities. The contribution to the fund shall bethefollowing: AonetimelumpsumappropriationfromtheNationalGovernment; An annual contribution from the Overseas Workers Welfare AdministrationFund,theamountofwhichshouldbepartofthestudyon financinginconjunctionwithletter(D)ofSection34; Donations, grants, endowments, and other bequests or gifts, and any otherincomegeneratedbytheAuthority. TheTESDABoardshallbetheadministratorofthefund,andassuch, shallformulatethe necessaryimplementingguidelinesfor themanagementofthefund,subjecttothefollowing: a) unless otherwise stipulated by the private donor, only earnings of privatecontributionsshallbeused;andb)nopartoftheseedcapitalof thefund,includingearnings,thereof,shallbeusedtounderwriteexpenses foradministration. The Board shall appoint a reputable governmentaccredited investment institutions as fund manager, subject to guidelines promulgatedbytheBoard. SEC 32. Scholarship Grants. The authority shall adopt a system of allocation and funding of scholarship grants which shall be responsive to the technical education and skills development needs of the different regionsinthecountry. SEC 33. TESDA Budget. The amount necessary to finance the initial implementation of this Act shall be charged against the existing appropriationsoftheNMYCandtheBTVE.Thereafter,suchfundsasmay
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be necessary for the continued implementation of this Act shall be includedintheannualGeneralAppropriationsAct. MANAGEMENTPREROGATIVE MANAGEMENTPREROGATIVE(MAYBEINFERREDFROMARTICLE212,m) "Managerial employee" is one who is vested with the powers or prerogatives to lay down and execute management policies and/ortohire,transfer,suspend,layoff,recall,discharge,assign ordisciplineemployees.Supervisoryemployeesarethosewho,in the interest of the employer, effectively recommend such managerialactionsiftheexerciseofsuchauthorityisnotmerely routinaryorclericalinnaturebutrequirestheuseofindependent judgment. All employees not falling within any of the above definitions are considered rankandfile employees for purposes ofthisBook. PALv.NLRC,225SCRA201(1993) Anemployeewhoviolatedacompanyrulebecausetherulewas issuedwithoutobservingtheparticipatoryrequirementin1211a paragraphgand255. Thereforeitcannotbelawfulasitviolatedanexistinglaw. Besides, how can employees follow the rule if they didn't know howtherulewasformulatedonwhattheruleis. Thepowerofhireasamanagementprerogativeextendstothose hiringofaspersonwithlessercredentials. Onecancompeltheemployertohireonlythecompetent. ST.LUKESCENTERV.NLRC,7MARCH2007 Thepowertohireasamanagementprerogativeextendstohiring one with less credentials as long as he possesses one with minimumqualifications. Veloso: As long as there is minimum qualifications is an unlawfulsteppingonthemanagementprerogativetohire. COCOLANDCORPORATIONV.NLRC,17JULY1996 The first ground relied upon by petitioner essentially involves determiningwhetherornotthereexistedavalidcompanypolicy prohibiting disclosure by employees of company technology and trade secrets to "outsiders", and whether or not private respondent's actions amounted to a violation of such policy sufficienttowarrantdismissal. The record fully supports the findings and conclusions of the arbiter that petitioner "failed to demonstrate with clear and convincingevidencetheallegedcompanypolicywhichitclaimed was violated by the complainant (private respondent)", and that inanyevent,evenassumingthattherewassuchcompanypolicy prohibiting its employees from transferring technological knowledgetothirdparties,thesocalledtechnologywashardlya 'trade secret' since private respondent had established convincinglyviacompetentevidencethatthevariouspropagation techniques claimed by petitioner as its trade secret were readily availabletothepublic. LABORSTANDARDSBENEFITS Art. 282. Termination by employer. An employer may terminate an employmentforanyofthefollowingcauses: a. Serious misconduct or willful disobedience by the employee of the lawfulordersofhisemployerorrepresentativeinconnectionwithhis work; b. Gross and habitual neglect by the employee of his duties; c. Fraudorwillfulbreachbytheemployeeofthetrustreposedinhimby his employer or duly authorized representative;
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d. Commissionofacrimeoroffensebytheemployeeagainsttheperson of his employer or any immediate member of his family or his duly authorized representatives; and Othercausesanalogoustotheforegoing. hisdesiretoreturntowork,thus,negatingtheemployerscharge ofabandonment. All the antecedents show that petitioner had constructively dismissed the respondents. Constructive dismissal is defined as quitting when continued employment is rendered impossible, unreasonable or unlikely as the offer of employment involves a demotion in rank and diminution of pay.[8] In this case, respondents were deemed constructively dismissed because whenevertheywouldreportforworkinthemorning,theywere barred,withoutanyjustifiablereason,bypetitionersguardfrom enteringthepremisesandweremadetowaitforDingwhowould arrive in the office at around noon, after they had waited for a longtimeandhadleft.
e. MANLYV.PAYONG,25OCTOBER2005 The burden of proving the validity of the dismissal rests on the employer.Assuch,theemployermustprovethattherequisites foravaliddismissal Theallegeddismissedemployeemustmentionthedetailsofthe allegeddismissalortoprovetheseveranceofhisemployment. Regarding constructive dismissal, the managements statement that he quit his job if he is not contented with the salary he is receivingisnotequivalenttoconstructivedismissal. ABADV.ROSELLCINEMA,MARCH24,2006 Inillegaldismissalcaseslikethepresentone,theonusofproving that the employee was not dismissed or if dismissed, that the dismissal was not illegal, rests on the employer and failure to dischargethesamewouldmeanthatthedismissalisnotjustified andthereforeillegal. If there is no evidence showing that the employee was actually dismissed by the employer, then there is no case of illegal dismissal. KINDSOFDISMISSAL 1. Actual 2. Constructive NEWEVERMARKETINGV.CA,14JULY2005 Indeed, an employee who loses no time in protesting his layoff cannotbyanyreasoningbesaidtohaveabandonedhiswork,for itiswellsettledthatthefilingbyanemployeeofacomplaintfor illegaldismissalwithaprayerforreinstatementisproofenoughof
VETERANSSECURITYAGENCYV.GONZALVO,16DECEMBER2005 Constructive dismissal exist when an act of clear discrimination, insensibilityordisdainonthepartoftheemployerhasbecomeso unbearableastoleaveanemployeewithnochoicebuttoforego continuedemployment. On the other hand, abandonment, as a just and valid cause for termination, requires a deliberate and unjustified refusal of an employee to resume his work, coupled with a clear absence of anyintentionofreturningtohisorherwork. Abandonmentisincompatiblewithconstructivedismissal. An employee who forthwith takes steps to protest his layoff cannotbyanystretchofimaginationbesaidtohaveabandoned his work and the filing of the complaint is proof enough og his desire to return to work, thus negating any suggestion of abandonment. True,itistheinherentprerogativeofanemployertotransferand reassign its employees to meet the requirements of its business. Bethatasitmay,theprerogativeofthemanagementtotransfer its employees must be exercised without grave abuse of discretion. The exercise of the prerogative should not defeat an employee's right to security of tenure. The employers privilege
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totransferitsemployeestodifferentworkstationscannotbeused asasubterfugetoriditselfofanundesirableworker. Inthecaseatbar,petitionerwasvalidlyrelievedfromhispostfor violating a company policy. The petitioner did not contest this violation as he in fact admitted to committing it during the investigation,thoughwithavalidandplausibleexplanation. What tarnishes the whole scene is the fact that after petitioner was relieved from his old post in Santiago City, Isabela, he was temporarily reassigned to the head office of private respondent PISA in Malabon, Metro Manila pending the opening of another bank in Isabela. This act is unfair and downright oppressive considering that petitioner, along with his family, is a longtime residentofSantiagoCity,Isabela.Thetransferwouldmeanthat petitionerwouldbeawayfromhisfamilyorthathewouldbring hisentirefamilytoManilaentailingexpenses.Further,itremains unclear if petitioner would be reassigned back to Isabela, as the saidplanremainsambiguousforitisnotclearlyshownwhenthe said reassignment would take place. In the Notice given to petitioner,itisstatedthathisreassignmenttoManilaisgoodfor 179daysandmayberenewedafteritsexpiration.Wecannotgive evidentiary weight to private respondent PISAs claim that petitionerwillbereassignedbacktoanotherbranchinIsabelaas noevidencetothateffectwasoffered. Whileitistruethatanemployerisfreetoregulate,accordingto his own discretion and judgment, all aspects of employment, includinghiring,workassignments,workingmethods,time,place andmannerofwork,toolstobeused,processestobefollowed, supervision of workers, working regulations, transfer of employees,worksupervision,layoffofworkersandthediscipline, dismissal and recall of workers (San Miguel Brewery Sales vs. Ople,G.R.No.53515,February8,1989),andthisrighttotransfer employees forms part of management prerogatives, the employees transfer should not be unreasonable, nor inconvenient, nor prejudicial to him. It should not involve a demotioninrankordiminutionofhissalaries,benefitsandother privileges,astoconstituteconstructivedismissal
FERNANDOGOV.CA.28MAY2004 Tenderingofresignationletter Constructive dismissal exists where there is a cessation of work because continued employment is rendered impossible, unreasonableorunlikely Itispresentwhenanemployeesfunctions,whichwereoriginally supervisory in nature, were reduced, and such reduction is not groundedonvalidgroundssuchasgenuinebusinessnecessity. It should be remembered that the petitioner has submitted a letter of resignation. It is thus incumbent upon him to substantiatehisclaimthathisresignationwasnotvoluntarybutin truthwasactuallyaconstructivedismissal Thefailureofthepetitionertofullysubstantiatehisclaimthatthe respondentstrippedhimofhisdutiesandfunctionsisfataltohis present petition. Except for the sworn statements previously discussed,whichwehavefoundtobelackinginprobativevalue, petitionerdidnotpresentanyotherproofoftheallegedstripping of his functions by the respondent. Petitioners bare allegations of constructive dismissal, when uncorroborated by the evidence onrecord,cannotbegivencredence. PHILIPPINEINDUSTRIALV.AGUINALDO,15JUNE2005 Incaseofconstructivedismissal,theemployerhastheburdenof proving that the transfer and demotion of an employee are for valid and legitimate grounds such as genuine business necessity. Particularly, for a transfer not to be considered a constructive dismissal,theemployermustbeabletoshowthatsuchtransferis not unreasonable, inconvenient, or prejudicial to the employee; nor does it involve a demotion in rank or a diminution of his salaries,privilegesandotherbenefits.Failureoftheemployerto overcomethisburdenofproof,theemployeesdemotionshallno doubtbetantamounttounlawfulconstructivedismissal.
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TYPESOFDISMISSAL 1. Forajustcause 2. Foraauthorizedcause 3. Forhealthreasons 4. Dismissalwithoutjustorauthorizedcausewithdueprocess 5. Dismissalwithoutjustorauthorizedcausewithoutdueprocess 6. Dismissalforjustorauthorizedcausewithoutdueprocess 7. Dismissalforafalseornonexistentcause JUSTCAUSESFORDISMISSAL 1. Seriousmisconduct 2. Willful disobedience to lawful orders of the employer or representativeinconnectionwithiswork 3. Grossorhabitualneglectoftheduty 4. Fraudorwillfulbreachofthetrust 5. Commission of crime against the employer or duly authorized representativeorimmediatememberofthefamily 6. Analogouscauses SERIOUSMISCONDUCT Misconductiswrongorimproperconduct Transgression of some established or definite rule of action, a forbidden act, a dereliction of duty, willful in character and implieswrongfulintent It is not enough that the employee commits misconduct but it mustbeserious Focus on a common denominator with other just causethe infraction must be in relation with the performance of the employeesduties Echevarria,2007:misconductinrelationtotheemployeesduties REQUISITES:SERIOUSMISCONDUCTASJUSTCAUSE (PREMIERBANKV.MANTAL,23MARCH2006) UnderArticle282oftheLaborCode,themisconduct,tobeajust cause for termination, must be of such grave and aggravated character, not merely of a trivial or unimportant nature. For seriousmisconducttowarrantthedismissalofanemployee,it(1) must be serious; (2) must relate to the performance of the employees duty; and (3) must show that the employee has becomeunfittocontinueworkingfortheemployer In the case at bar, respondent cannot be held liable for serious misconduct or gross negligence. No independent evidence was presented to prove her "willful conspiracy" with Detalla. Petitioner even admitted that there is no direct evidence that respondent benefited from the falsified bank guarantee. Liability fortheincidentlaysolelywithDetalla,whopatentlybreachedthe trust and confidence of petitioner. Respondent merely followed theordersofthebankmanagerwhichappearedtoberegular.
(ROQUEROV.PAL,22APRIL2003) Serious misconduct is defined as "the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intentandnotmereerrorinjudgment."Forseriousmisconductto warrant the dismissal of an employee, it (1) must be serious; (2) must relate to the performance of the employee's duty; and (3) must show that the employee has become unit to continue workingfortheemployer. It is of public knowledge that drugs can damage the mental faculties of the user. Roquero was tasked with the repair and maintenance of PAL's airplanes. He cannot discharge that duty if heisadruguser.Hisfailuretodohisjobcanmeangreatlossof lives and properties. Hence, even if he was instigated to take drugshehasnorighttobereinstatedtohisposition.Hetookthe drugs fully knowing that he was on duty and more so that it is prohibitedbycompanyrules.Instigationisonlyadefenseagainst criminal liability. It cannot be used as a shield against dismissal fromemploymentespeciallywhenthepositioninvolvesthesafety ofhumanlives.
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WILLFULDISOBEDIENCE 1. Instructionsmustbereasonableandlawful 2. Sufficientlyknowntotheemployee 3. Inconnectionwithhisdutieswhichtheemployeehasengagedto discharge PALv.NLRC:thecompanyrulescannotconstitutealawfulorder asitdidn'tfollowpropercomposition Basconv.NLRC,2004 GROSSANDHABITUALNEGLECTOFDUTY Gross neglect means an absence of that diligence that an ordinarilyprudentmanwoulduseinhisownaffairs A single and isolated act of negligence doesn't constitute a just causefortermination Gross negligence connotes want of care in the performance of onesduties Habitualneglectimpliesrepeatedfailuretoperformonesduties foraperiodoftime,dependinguponthecircumstances Fraud and will neglect connote bad faith on the part of the employee in failing to perform his job to the detriment of the employerandthelattersbusiness GROSSANDHABITUALNEGLECTISCONNECTEDWITHABANDONMENT 1. Failuretoreportforworkwithoutvalidandjustifiablereason 2. Clear intention to sever EER and this must be shown thru over acts 3. The employer must have reported such fact with the nearest DOLE office (Department Order 9, series 1997)without this, thereisnocaseofabandonment 4. MicroSalesNetworkv.NLRC,11October2005: a. Hermosawasunjustlydismissed. b. Forwillfuldisobediencetobeavalidcausefordismissal, the following twin elements must concur: (1) the employee'sassailedconductmusthavebeenwillful,that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee and must pertain tothedutieswhichhehadbeenengagedtodischarge. c. Both elements are lacking. We find no hint of perverse attitude in Hermosas written explanation. On the contrary,itappearsthattheallegedcompanyprocedure for leaving the ignition key of the companys vehicles withinofficepremiseswasnotevenmadeknowntohim. BigAAManufacturingv.Antonio,3March2006 a. For accusing respondents of abandonment, petitioner must present evidence (1) not only of respondents failure to report for work or absence without valid reason, but (2) also of respondents clear intention to sever employeremployee relations as manifested by some overt acts. The second element is the more determinativefactor. b. Here, petitioners argument in support of its abandonment charge was that respondents may have resented its issuance of the Implementing Guidelines. This,inourview,failstoestablishrespondentsintention to abandon their jobs. On the contrary, by filing the complaint for illegal dismissal within two days of their dismissal on January 11, 2000 and by seeking reinstatement in their position paper, respondents manifested their intention against severing their employmentrelationshipwithpetitionerandabandoning theirjobs.Itissettledthatanemployeewhoforthwith protestshislayoffcannotbesaidtohaveabandonedhis work.
5.
**There are times when abandonment is tantamount to serious misconduct.Thereisalsotimeswhenseriousmisconductistantamountto willfuldisobedience. *ABANDONMENT
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Deliberate and unjustified refusal of an employee to resume his employment Itisaformofneglectofduty 6. 7. 8. Bankteller Shipcaptain Managerialemployee
REQUIREMENTSFORABANDONMENTTOEXIST (AGABONV.NLRC,17NOVEMBER2004) 1. Thefailuretoreportforworkorabsencewithoutvalidorjustified reason 2. Clear intention to sever the EER, with the second as the more determinativefactorwhichismanifestedbyovertactsfromwhich itmaybededucedthattheemployeehasnointentiontowork FRAUDORWILLFULBREACHOFTRUST The fraud must be committed against the employer or representativeandinconnectionwiththeemployeeswork Appliestomanagerialandconfidentialemployees Thewillfulbreachmustbeconnectedwithfraud POSITIONOFTRUSTANDCONFIDENCE One where a person is entrusted with confidence on delicate matters,orwiththecustody,handling,orcareandprotectionof theemployerspropertyand/orfunds Basicpremiseisthattheemployeeconcernedholdsapositionof trustandconfidence,anditishisbreachofthistrustthatresults intheemployerslossofconfidence Theactmustbeworkrelatedtoshowthattheemployeeisunfit tocontinueworkingfortheemployer EXAMPLES OF POSITIONS CONSIDERED TO BE OF TRUST AND CONFIDENCE 1. Bookkeeper 2. Purchaser 3. Accountant 4. Cashier 5. Salesman
GUIDELINESFORTHEDOCTRINEOFLOSSOFCONFIDENCE(TOLENTINOV. PLDT,8JUNE2005) However, loss of trust and confidence or grave misconduct must not be based on unsubstantiated suspicions, conjectures or surmises. Loss of trust and confidence as a just cause for termination of employee must rest on a breach of duty committed by the employee and not on the caprices of the employer. 1. Lossofconfidenceshouldn'tbesimulated 2. It shouldn't be used as a subterfuge for causes which are improper,illegal,orunjustified 3. Loss of confidence may not be arbitrarily asserted in the face of overwhelmingevidencetothecontrary 4. It must be genuine, not a mere afterthought to justify earlier actiontakeninbadfaith 5. It must be substantial and not arbitrary, whimsical, capricious, andconcocted *Please note that Tolentino v. PLDT only cited the same guidelines mentionedinthecaseofChinaCityRestaurantv.NLRC. COMMISSIONOFACRIME Commissionofacrimeinvolvingmoralturpitudeisnotoneofthe justcausesunderthelaw This refers to an offense against the person of the employer or any immediate member of his family or his duly authorized representative ANALOGOUSCASES
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Oneisanalagoustoanotherifitissusceptibleofcomparisonwith latter, either in general as in some specific detail, or has close relationshipwiththelatter The determination of whether the cause for terminating the employment is analogous depend on the circumstances of each case To be considered analogous to the just causes, a cause must be due to the voluntary and/or willful act or omission of the employee Asarule,heshallnotbeentitledtoanybenefits Under the law, there is nothing providing for benefits the employeewillbeentitledto The CBAS however may provide for benefits even for voluntarily resignedemployees Undervoluntarygrounds,itmighthavebeenthepracticethatthe employergrantsbenefitstovoluntarilyresigned. Ifitisamatterofpractice,thenitbecomesavestedright. OrientalShippingcase(2006):resignationisinconsistentwiththe filing of a complaint for illegal dismissal. This decision is parallel totheruleofabandonment. HanfordPhilippinesv.Joseph(2005):anemployeewhovoluntarily resigned may be still entitled to benefits if provided for by the CBA
PREVENTIVESUSPENSION Rule23,BookFive TheCodedoesn'tmentionitbutitisrecognizedintheIRR The law provides for commission of crime against the life of the employer, etc. but what if the crime was committed against the property, can he be preventively suspended? Yes he can be by virtueofRule23,BookFiveoftheRules.Hecanbedismissedby virtueofArticle252,(e). Committee of Rural Bank of Isidro case: the employee is entitled to his salary and benefits beyond the 320day preventive suspension.Ifthepreventivesuspensionisdeemedtobewithout basis,thenheshallbeentitledtopayforthatwholeperiod. Grepalifev.NLRC:maximumperiodofpreventivesuspensionis30 days RESIGNATION Voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favoroftheexigencyoftheservice,thenhehasnootherchoice buttodissociatehimselffromhisemployment The employer must be accepted and approved by the employer anditswithdrawalmustbewiththeconsentoftheemployer Reyesv.CA:Tobeeffective,theresignationmustbeaccepted Phil. Today v. NLRC: Once accepted, it cannot be withdrawn withoutconsentofemployer
FORCEDRESIGNATION When an employee is compelled to resign because continued employmenthasbecomeimpossible,unreasonableorunlikely,as an offer involving a demotion in rank and diminution in pay, his quitting his job amounts to constructive discharge or illegal dismissal A TENDERS A LETTER OF RESIGNATION ON 25 DECEMBER 2007, IRREVOCABLY, EFFECTIVE 5 JANUARY 2008. ON 1 JANUARY 2008, COS ND CBA, A 2 YEAR INCREASE TOOK EFFECT (P500/DAY). THE EMPLOYER REFUSED TO GRANT. ON 20 JANUARY 2008, A FILED AN ILLEGAL DISMISSAL CASE, AVERRING THAT THERE WAS CONSTRUCTIVE DISMISSAL. Howcanheclaimcontinuedemploymentisunbearablewhenhe hasalreadytenderedaletterofresignation. Howcanwejustifytherefusalofpaymentofthebenefit?There is no mention of the period of work by the employee to be entitledtotheP500/day.Thisisundertheprincipleofnowork, nopay.
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Boohoo!!! I asked if it can also be argued that the employee wasn'tapartoftheCBA.Velososaidthatitcanbereadbetween thelines.Yet,canyounotinferfromthefactsthatheworkedfor theperiodheisaskingforbenefitsfor?! mandatedbylaw. INTRODUCTIONOFLABORSAVINGDEVICES The switch from men employment to mechanical employment has economically dislocated many workers and thus, it is only properforthemanagementtopaythedisplacedworkersinorder to tide them over in the meantime while they are looking for otherjobs REDUNDANCY Existswheretheservicesofanemployeeareinexcessofwhatis reasonablydemandedbytheactualrequirementoftheenterprise This may be the outcome of overhiring of workers, decreased volume of business, the dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise This doesn't necessarily or even ordinarily refer to duplication of work A bona fide implementation of a redundancy program is not destroyed by the availment of the services of an independent contractortoreplacetheservicesofterminatedemployees VALIDITYOFAREDUNDANCYPROGRAM 1. WrittennoticeservedonboththeemployeeandtheDepartment of Labor and Employment within 1 month prior to the intended dateofretrenchment 2. Paymentofseparationpayequivalenttoatleast1monthpayor atleast1monthforeveryyearofservice 3. Goodfaithinabolishingtheredundantpositions 4. Fair and reasonable criteria in ascertaining what positions are to bedeclaredredundantandaccordinglyabolished RETRENCHMENT
Art. 283. Closure of establishment and reduction of personnel. The employermayalsoterminatetheemploymentofanyemployeeduetothe installation of laborsaving devices,redundancy,retrenchmenttoprevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisionsofthisTitle,byservingawrittennoticeontheworkersandthe Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of laborsaving devices or redundancy, the worker affected thereby shall be entitledtoaseparationpayequivalenttoatleasthisone(1)monthpayor toatleastone(1)monthpayforeveryyearofservice,whicheverishigher. In case of retrenchment to prevent losses and in cases of closures or cessationofoperationsofestablishmentorundertakingnotduetoserious businesslossesorfinancialreverses,theseparationpayshallbeequivalent toone(1)monthpayoratleastonehalf(1/2)monthpayforeveryyearof service, whichever is higher. A fraction of at least six (6) months shall be consideredone(1)wholeyear. AUTHORIZEDCAUSEOFDISMISSAL;DISTINGUISHEDFROMJUSTCAUSE AUTHORIZEDCAUSE JUSTCAUSE Terminating an employee with a This implies that the employee has liabilityonthepartoftheemployer committed or is guilty of, some to pay separation pay as mandated violationagainsttheemployer,that bylaw. is, the employee has committed someseriousmisconductisguiltyof Thedismissalprocessisinitiatedby fraud against the employer, or he the employers exercise of has neglected his duties such as managementprerogative abandonment. Payment of separation pay is not
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Reductionofpersonnelusuallyduetopoorfinancialreturnssoas tocutdownoncostsofoperationsintermsofsalariesandwages topreventbankruptcyofthecompany Purpose is to save a financially ailing establishment from eventuallycollapsing cannot pay anymore his employees since business has already stopped Anemployermayhowevercloseorceasehisbusinessoperations or undertaking even if he is not suffering from serious business lossesorfinancialreverses,aslongashepayshisemployeesthe termination pay in the amount corresponding to their length of service Closureofbusinessmustbebonafideanditissufficientthatthe establishment, department, or unit where the employee is employedclosesorceasestooperate. The closure must be permanent. Otherwise the employment relationshipshallonlybesuspended.
LAYOFFUSEDINTERCHANGEABLYWITHRETRENCHMENT Terminationofemploymentresortedtobytheemployerthrough nofaultofnorwithprejudicetotheemployees,duringperiodsof businessrecession,industrialdepression,etc. It is an act of the employer of dismissing employees because of losses ion business operations, lack of work, and considerable reduction of the volume of the business, a right consistently recognizedandaffirmedbythecourt. LEGALPROCEDUREFORRETRENCHMENT 1. Thataonemonthpriornoticebegiventotheemployeeandthe DOLEasprescribedbylaw 2. That a fair and reasonable criteria be used in carrying out the retrenchmentprogram GENERALSTANDARDSFORRETRENCHMENT 1. Lossesexpectedaresubstantialnotmerelydeminimis 2. Theapprehendedsubstantiallossesarereasonablyimminentand canbeperceivedobjectivelyandingoodfaithbyutheemployer 3. Due to farreaching nature of retrenchment, it is reasonably necessarytopreventtheexpectedlosses 4. Expectoractuallossesmustbeprovedbysubstantialevidence CLOSUREOFBUSINESS Reversaloffortuneoftheemployerwherebythereisacomplete cessationofbusinessoperationsand/oractuallockingupofthe doorsofestablishment,usuallyduetofinanciallosses It is an authorized cause for termination of employment which aimstoorpreventfurtherfinancialdrainuponanemployerwho
REQUIREMENTS FOR CLOSURE OF BUSINESS; 30DAY NOTICE TO DOLE MANDATORY 1. Service of written notice to the employees and to the DOLE at least1monthbeforetheintendeddatethereof 2. Cessationofbusinessoperationsisbonafideincharacter 3. Paymentoftheseparationpayamountingtoatleastmonthpay foreveryyearofserviceor1monthpay,whicheverishigher SEPARATIONPAYINAUTHORIZEDCAUSEDISMISSAL 1. Onemonthpayforeveryyearofservice a. Automation b. Redundancy 2. Onhalfmonthpayforeveryyearofservice a. Retrenchmenttopreventlosses b. Closurenotduetoseriouseconomiclosses 3. Noseparationpay a. Closureduetoseriouseconomicreverses BASISOFSEPARATIONPAY Shall be based on the latest salary rate unless the same was reduced by the employer to defeat the intention of the LC, in
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whichcase,theseparationpayshallbebasedontheratebefore thededuction Iftherewasevidencesufficientlyshowingtheemployeesfitness to resume his work, his termination through compulsory retirement for exhaustion of sick leave benefits based on the companys health, welfare and retirement, was illegal for lack of basis
CHANGEOFBUSINESSOWNERSHIP:PRINCIPLEOFABSORPTION In the exercise of management prerogative, the employer may mergetorcoordinateitsbusinesswithanother,orsellordispose allorsubstantiallyallofitsassetsandpropertieswhichmaybring aboutthedismissalorterminationofitsemployeesintheprocess Thechangeofownershipdoesn'tcreateanobligationofthepart of the new owner top absorb the employees of the preivous owner Art.284.Diseaseasgroundfortermination.Anemployermayterminate theservicesofanemployeewhohasbeenfoundtobesufferingfromany disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his coemployees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to onehalf (1/2) month salary for every year of service, whicheverisgreater,afractionofatleastsix(6)monthsbeingconsidered asone(1)wholeyear. TERMINATIONDUETODISEASE Where an employee suffers from a disease and his continued employmentisprohibitedbylaworprejudicialtohishealthorto thehealthofhiscoemployees,theemployershallterminatehis services o Thereisacertificationbyacompetentpuybluicauthority o That the disease cannot be cured within a period of 6 monthsevenwithpropermedicaltreatment o If the illness can be cured for a shorter period, the employer may just ask the employee to take a leave of absence TERMINATIONFOREXHAUSTIONOFSICKLEAVE
Art.285.Terminationbyemployee. a. An employee may terminate without just cause the employee employerrelationshipbyservingawrittennoticeontheemployerat least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages. Anemployeemayputanendtotherelationshipwithoutservingany notice on the employer for any of the following just causes: 1. Seriousinsultbytheemployerorhisrepresentativeonthehonor and person of the employee; 2. Inhumanandunbearabletreatmentaccordedtheemployeebythe employer or his representative; 3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and 4. Othercausesanalogoustoanyoftheforegoing.
b.
TERMINATIONBYEMPLOYMENTRELATIONSHIPBYANEMPLOYEE An employee may terminate without just cause, employment relationship by serving notice upon the employer at least one monthinadvance Failuretoservenoticewillmakehimliablefordamages Noticerequirementcanbedispensedwithifforjustcause
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JUST CAUSES FOR TERMINATING EMPLOYMENT RELATIONSHIP BY AN EMPLOYEE 1. Seriousinsultbytheemployerorhisrepresentativeonthehonor andpersonoftheemployee; a. Insultto treat with insolence, indignity, or contempt by wordoraction,toaffrontwantonly b. Thisimpliesmaliceordenotesillwill c. Sudden expression of anger by the employer without intent to injure or offend the person before whom such angry words were uttered may not constitute serious insultwithinthemeaningofthelaw 2. Inhumanandunbearabletreatmentaccordedtheemployeebythe employerorhisrepresentative; a. Iftheconductoftheemployerismarkedbycruelty,orif its cruel and unfeeling, indicating an absence of that kindness and tenderness that belongs to a human being, or if it produces reasonable apprehension of physical violence, causes mental distress and sorrow, it is to be consideredasajustcauseunderthelaw 3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediatemembersofhisfamily; 4. Othercausesanalogoustoanyoftheforegoing. Art. 286. When employment not deemed terminated. The bonafide suspensionoftheoperationofabusinessorundertakingforaperiodnot exceedingsix(6)months,orthefulfillmentbytheemployeeofamilitary or civic duty shall not terminate employment. In all such cases, the employershallreinstatetheemployeetohisformerpositionwithoutloss of seniority rights if he indicates his desire to resume his work not later thanone(1)monthfromtheresumptionofoperationsofhisemployeror fromhisrelieffromthemilitaryorcivicduty. TEMPORARYSUSPENSIONOFOPERATION Bona fide suspension of operation of a business or undertaking foraperiodnotexceeding6monthsdoesn'tterminateEER Where the suspension extends beyond the 6month period, employmentrelationshipisdeemedterminated However if the suspension is used as a subterfuge to defeat the rightsoftheemployees,EERisnotterminatedalthoughitlasted beyond6months Thisprovisiondoesn'tentertainextensionsoftheperiod Inpractice,youcanutilizethisprovisioninissuingtemporarylay off memorandums when you aver suspension of operations due to low business volume. After 56 months, many would be in a different job and they wouldn't indicate their desire to return to work. You wouldn't anymore need to pay them separation pay afteraonemonthrecall.
RESTORATIONOFEMPLOYMENTSTATUS During the period of suspension of business operations or fulfillment of a military or civic duty, employment relationship is merelysuspended If the employee wanted to resume his employment, he may communicate his desire to the employer within 1 month from resumption of business operations or relief from military or civic duty Theemployeristhennowmandatedtoreinstatetheemployeeto hisformerpositionwithoutlossofseniorityrights Art. 287. Retirement. Any employee may be retired upon reaching the retirementageestablishedinthecollectivebargainingagreementorother applicableemploymentcontract. In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any collective bargaining agreement and other agreements: Provided, however, That an employees retirement benefits under any collective
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bargaining and other agreements shall not be less than those provided therein. Intheabsenceofaretirementplanoragreementprovidingforretirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixtyfive (65) years whichisherebydeclaredthecompulsoryretirementage,whohasserved at least five (5) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least onehalf (1/2) month salaryforeveryyearofservice,afractionofatleastsix(6)monthsbeing consideredasonewholeyear. Unlessthepartiesprovideforbroaderinclusions,thetermonehalf(1/2) month salary shall mean fifteen (15) days plus onetwelfth (1/12) of the 13thmonthpayandthecashequivalentofnotmorethanfive(5)daysof serviceincentiveleaves. Retail,serviceandagriculturalestablishmentsoroperationsemployingnot morethanten(10)employeesorworkersareexemptedfromthecoverage ofthisprovision. Violation of this provision is hereby declared unlawful and subject to the penalprovisionsunderArticle288ofthisCode. RETIREMENT Result of a bilateral act of the parties, a voluntary agreement between the employer and employee whereby the latter, after reachingacertainage,agreestoseverehisemploymentwiththe former Withdrawal from office, business, occupation, public duty or servicesuponreachingacertainage Theaforequotedprovisionprovidesforthelaborstandardbenefit of retirement paya minimum, which can be increased byu agreementoftheemployerandemployee,orbyCBA,orbylaw IF ONE RETIRES VALIDLY UNDER ARTICLE 287, CAN HE ALSO VALIDLY CLAIMFORRETIREMENTBENEFITUNDERTHECBATOGETHERWITHTHE RETIREMENTPLANPROVIDEDFORBYARTICLE287? InthecaseofAquinov.NLRC,youcanespeciallyifthereisnobar provided for double recovery either in the retirement plan or in theCBA. CarlosSolomonv.AssociatedShippingLines,therewasnodouble recoverybecausethiswasprovidedintheCBA. ART.277.Miscellaneousprovisions. (b)Subjecttotheconstitutionalrightofworkerstosecurityoftenureand their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whoseemploymentissoughttobeterminatedawrittennoticecontaining astatementofthecausesforterminationandshallaffordthelatterample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulationspromulgatedpursuanttoguidelinessetbytheDepartmentof Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legalityofhisdismissalbyfilingacomplaintwiththeregionalbranchofthe National Labor Relations Commission. The burden of proving that the terminationwasforavalidorauthorizedcauseshallrestontheemployer. TheSecretaryoftheDepartmentofLaborandEmploymentmaysuspend the effects of the termination pending resolution of the dispute in the eventofaprimafaciefindingbytheappropriateofficialoftheDepartment of Labor and Employment before whom such dispute is pending that the terminationmaycauseaseriouslabordisputeorisinimplementationofa masslayoff.(AsamendedbySection33,RepublicActNo.6715,March21, 1989).
ARTICLE 277 (B) CAN BE DIVIDED INTO THREE LABOR STANDARD BENEFITS 1. Dueprocess
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DueProcess Just causes Notice informingof charge Emplo yee must be given chanc eto be heard and defen d himsel f Investi gation Notice of decisi onto dismis s Illegalstrike Authorized causes Notice to emplo yee (excep tArt. 284: certifi cation from physic ian) Termi nation by emplo yee
Unionofficers maybeheld liableifhe knowingly participatedin theillegalstrike Unionofficers maybeheld liableifhe knowingly participatein illegalacts
Emplo yee: "repre sentat iveof his own choice "does not accom odate a simple explan ation of "why"
Notice to DOLE
Article264
Illegalacts
Notice to emplo yer
Not conte mplat edin Article 277b
SUICO V. PLDT, 30 JANUARY 2007 (citing STAMFORD MARKETING CORPORATIONV.JULIAN,FEBRUARY2004) Union officers might be automatically be terminable due to stagingillegalstrikes,buttheyarestillentitledtodueprocess. NothinginArticle264authorizesautomaticdismissaloftheunion officers. Art.277(b)inrelationtoArt.264(a)55and(e)56recognizesthe right to due process of all workers, without distinction as to the causeoftheirtermination.Wherenodistinctionisgiven,noneis construed. Hence, the foregoing standards of due process apply to the termination of employment of Suico, et al. even if the cause therefor was their supposed involvement in strikerelated violenceprohibitedunderArt.264(a)and(e). Moreover, the procedure for termination prescribed under Art. 277(b) and Rule XXII of the Implementing Rules of Book V is supplemented by existing company policy. Art. 277(b) provides
takenote:no vicariousliability (Iamnotmy brother'skeeper
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that the procedure for termination prescribed therein is without prejudicetotheadoptionbytheemployerofcompanypolicyon thematter,providedthisconformswiththeguidelinessetbythe DOLEsuchasRuleXXIIoftheImplementingRulesofBookV.This is consistent with the established principle that employers are allowed,underthebroadconceptofmanagementprerogative,to adopt company policies that regulate all aspects of personnel administrationincludingthedismissalandrecallofworkers. a. b. TheDOLESecretarymustbediscerning. The reason why he must be furnished reports on mass layoff is for him to discern if the layoff was due to an honestandgoodfaithintention If the mass layoff was to violate Article 284, then the DOLESecretarycanstopthelayoff
c.
BIFLEX PHILS. INC. LABOR UNION V. FILFLEX INDUSTRIAL AND MANUFACTURINGCORPORATION,19DECEMBER2006 Any union officer who knowingly participates in an illegal strike andanyworkerorunionofficerwhoknowinglyparticipatesinthe commissionofillegalactsduringastrikemaybedeclaredtohave losthisemploymentstatus:Provided,Thatmereparticipationofa workerinalawfulstrikeshallnotconstitutesufficientgroundfor termination of his employment, even if a replacement had been hiredbytheemployerduringsuchlawfulstrike. The law grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his employment." Reinstatement of a striker or retention of his employment, despite his participation in an illegal strike, is a managementprerogativewhichthisCourtmaynotsupplant. The dismissals under Article 264 can be immediately resorted because Article 264 says so. When there is mention of loss of employment status, it is selfexecuting and there is exercise of managementprerogative. 2. Burdenofproof 3. Secretaryspowertoenjoinmasslayoff(inrelationtoArticle254 because this article speaks only of two exceptionsinjunction is prohibited not only from regular courts and other agencies and the exceptions are Art. 218 (e), which is the NLRCs power, togetherwith212(a);theotherexceptionisArticle264[263(g)]; anotherexceptionisArticle277(b).
ART. 254. Injunction prohibited. No temporary or permanent injunction or restraining order in any case involving or growing outoflabordisputesshallbeissuedbyanycourtorotherentity, exceptasotherwiseprovidedinArticles218and264ofthisCode. (AsamendedbyBatasPambansaBilang227,June1,1982). ART. 218 xxx (e) To enjoin or restrain any actual or threatened commissionofanyorallprohibitedorunlawfulactsortorequire theperformanceofaparticularactinanylabordisputewhich,if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party: Provided, That no temporary or permanent injunction in any case involving or growing out of a labordisputeasdefinedinthisCodeshallbeissuedexceptafter hearing the testimony of witnesses, with opportunity for cross examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and onlyafterafindingoffactbytheCommission,totheeffect: (1) That prohibited or unlawful acts have been threatened and willbecommittedandwillbecontinuedunlessrestrained,butno injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizingorratifyingthesameafteractualknowledgethereof;
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(2) That substantial and irreparable injury to complainants propertywillfollow; (3)Thatastoeachitemofrelieftobegranted,greaterinjurywill beinflicteduponcomplainantbythedenialofreliefthanwillbe inflictedupondefendantsbythegrantingofrelief; (4)Thatcomplainanthasnoadequateremedyatlaw;and (5) That the public officers charged with the duty to protect complainants property are unable or unwilling to furnish adequateprotection. Suchhearingshallbeheldafterdueandpersonalnoticethereof hasbeenserved,insuchmannerastheCommissionshalldirect, to all known persons against whom relief is sought, and also to the Chief Executive and other public officials of the province or city within which the unlawful acts have been threatened or committed, charged with the duty to protect complainants property: Provided, however, that if a complainant shall also allege that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to complainants property will be unavoidable, such a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained, to justify the Commission in issuing a temporaryinjunctionuponhearingafternotice.Suchatemporary restrainingordershallbeeffectivefornolongerthantwenty(20) daysandshallbecomevoidattheexpirationofsaidtwenty(20) days. No such temporary restraining order or temporary injunction shall be issued except on condition that complainant shallfirstfileanundertakingwithadequatesecurityinanamount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorneys fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceedingandsubsequentlydeniedbytheCommission. The undertaking herein mentioned shall be understood to constituteanagreemententeredintobythecomplainantandthe suretyuponwhichanordermayberenderedinthesamesuitor proceeding against said complainant and surety, upon a hearing toassessdamages,ofwhichhearing,complainantandsuretyshall have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the Commission for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity: Provided, further, That the reception of evidence for the application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters who shallconductsuchhearingsinsuchplacesashemaydetermineto be accessible to the parties and their witnesses and shall submit thereafterhisrecommendationtotheCommission.(Asamended bySection10,RepublicActNo.6715,March21,1989). ART.263xxx (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to thenationalinterest,theSecretaryofLaborandEmploymentmay assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoiningtheintendedorimpendingstrikeorlockoutasspecified intheassumptionorcertificationorder.Ifonehasalreadytaken place at the time of assumption or certification, all striking or locked out employees shall immediately returntowork and the employer shall immediately resume operations and readmit all
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workers under the same terms and conditions prevailing before thestrikeorlockout.TheSecretaryofLaborandEmploymentor the Commission may seek the assistance of law enforcement agenciestoensurecompliancewiththisprovisionaswellaswith suchordersashemayissuetoenforcethesame. In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockoutsinhospitals,clinicsandsimilarmedicalinstitutionsshall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhaustedtosubstantiallyminimize,ifnotprevent,theiradverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operationofsuchhospitals,clinicsormedicalinstitutions,itshall be the duty of the striking union or lockingout employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients,mostespeciallyemergencycases,forthedurationofthe strikeorlockout.Insuchcases,therefore,theSecretaryofLabor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout,jurisdictionoverthesameorcertifyittotheCommission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the lockingout employer of backwages, damages and other affirmative relief, even criminal prosecutionagainsteitherorbothofthem. The foregoing notwithstanding, the President of the Philippines shallnotbeprecludedfromdeterminingtheindustriesthat,inhis opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labordisputeinordertosettleorterminatethesame. MANAGEMENTPREROGATIVETODISMISS Itistheprerogativeofthemanagementtoemploytheservicesof aperson Likewise,ithastheprerogativetodismissorlayoffanemployee Theexerciseofthatprerogativemusthoweverbemadewithout the abuse of discretion for what is at stake is not only the employeespositionbutalsohismeansoflivelihood Itisnotanabsoluteprerogativeforitissubjecttothelimitations imposedbylaw DOCTRINEOFINCOMPATIBILITY Uponemployment,anemployeeisexpectedtobehaveinsucha mannerthatwouldensuretheefficientandorderlyoperationof theemployersbusiness Where the employee has done something incompatible or contrarywiththefaithfulperformanceofhisduties,hisemployer hasajustcauseforterminatinghisemployment PROCEDURALREQUIREMENTSOFDISMISSALFORJUSTCAUSES 1. Noticetwonoticerule 2. Answerandhearing 3. Preventivesuspension 4. Decisiontodismiss ESSENCEOFDUEPROCESS Theemployershallaffordtheworkeranampleopportunitytobe heard,orasappliedtoadministrativeproceedings,anopportunity
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toexplainonessideoranopportunitytoseekareconsideration oftheactionorrulingcomplainedof Thiscontemplatesfreedomfromarbitrariness fromthetimeofterminationuntilitisjudiciallydeclaredthatthe dismissalwasforajustorauthorizedcause. Aftercarefullyanalyzingtheconsequencesofthedivergentdoctrines in the law on employment termination, we believe that in cases involving dismissals for cause but without observance of the twin requirementsofnoticeandhearing,thebetterruleistoabandonthe SerranodoctrineandtofollowWenphilbyholdingthatthedismissal was for just cause but imposing sanctions on the employer. Such sanctions,however,mustbestifferthanthatimposedinWenphil.By doing so, this Court would be able to achieve a fair result by dispensingjusticenotjusttoemployees,buttoemployersaswell. Wherethedismissalisforajustcause,asintheinstantcase,thelack ofstatutorydueprocessshouldnotnullifythedismissal,orrenderit illegal, or ineffectual. However, the employer should indemnify the employee for the violation of his statutory rights, as ruled in Reta v. 36 NationalLaborRelationsCommission. Theindemnitytobeimposed shouldbestiffertodiscouragetheabhorrentpracticeof"dismissnow, pay later," which we sought to deter in the Serrano ruling. The sanction should be in the nature of indemnification or penalty and should depend on the facts of each case, taking into special considerationthegravityofthedueprocessviolationoftheemployer. Theviolationofthepetitioners'righttostatutorydueprocessbythe privaterespondentwarrantsthepaymentofindemnityintheformof nominal damages. The amount of such damages is addressed to the sound discretion of the court, taking into account the relevant 40 circumstances. Considering the prevailing circumstances in the case atbar,wedeemitpropertofixitatP30,000.00.Webelievethisform ofdamageswouldservetodeteremployersfromfutureviolationsof thestatutorydueprocessrightsofemployees. ONUSPROBANDI
ELEMENTSOFDUEPROCESSINCASESOFDISMISSAL Noticeandhearing Notice is intended to inform the employee concerned of the employers intent to dismiss and the reason for the proposed dismissal Hearing affords the employee the opportunity to answer his employerschargesagainsthimandaccordinglytodefendhimself therefrombeforedismissaliseffected Neithertwocanbedispensedwith ELEMENTSOFADMINISTRATIVEDUEPROCESS 1. The right to actual or constructive notice of the institution of proceedingsthatmayaffectthepersonslegalrights 2. Reasonableopportunitytoappearanddefendhisright,introduce witnessesandrelevantevidenceinhisfavor 3. A tribunal so constituted as to give him reasonable assurance of honestyandimpartialityandoneofcompetentjurisdiction 4. A finding or decision by that tribunal supported by substantial evidence presented at the hearing or at least contained in the recordsordisclosedtotheparties BELATED DUE PROCESS RULE, RESTORED; AGABON DOCTRINE ABANDONSSERRANORULING Under the Wenphil doctrine, where the employer had a valid reason to dismiss an employee but didn't comply with the due process requirement, the dismissal may be upheld but the employerwillbepenalizedtopayanindemnitytotheemployee Under the Serrano ruling, the violation by the employer of the notice requirement in termination for just or authorized causes wasn't a denial of due process that will nullify termination. The dismissal is ineffectual and the employer must pay backwages
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The burden of proof rests upon the employer to show that the dismissaloftheemployeeisforajustcause,andfailuretodoso would necessarily mean that the dismissal is not justified, consonantwiththeconstitutionalguaranteeofsecurityoftenure asimplementedbylaw
DEGREEOFPROOF Substantialevidencesufficient It means more than a mere scintilla or relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable might conceivablyopineotherwise
Separationpayif reinstatementnot possible Article279:Illegal dismissal;Regular employment Fullbackwages: withheld;actually reinstated Indemnityofnominal damages:forfailureto observedueprocess
Basedonwhathe receives;actual reinstatement Differentfrom separationpay: computedbased ondateof judgment
DUEPROCESSALSOAPPLIESTOMIGRANTWORKERS Itappliesevenifyouhaveatyrantemployer,stillnoncompliance wouldmeritdamagesbutnotreinstatement See:Abesco2006,Filemploy2006,DMAShipping2005
Art.279.Securityoftenure.Incasesofregularemployment,theemployer shallnotterminatetheservicesofanemployeeexceptforajustcauseor whenauthorizedbythisTitle.Anemployeewhoisunjustlydismissedfrom workshallbeentitledtoreinstatementwithoutlossofseniorityrightsand otherprivilegesandtohisfullbackwages,inclusiveofallowances,andto his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.(AsamendedbySection34,RepublicActNo.6715,March 21,1989)
PURPOSEOFTHELAW The law is designed to protect the employee against arbitrary, oppressive,andunceremoniousdismissalordeprivationofjob Extremecautionisthuswarrantedinterminatingtheservicesofa worker, for his job may be the only lifeline on which he and his familydependforsurvivalinthesedifficulttimesandthatlifeline shouldnotbecutoffexceptforaserious,justandlawfulcause Employment is not merely a contractual relationship, it has assumedthenatureofapropertyright RIGHTTOSECURITYOFTENURE Security of tenure is the right of a worker to be secured or to continueinemploymentuntilthesameisterminatedbyvirtueof avalid,justcauseorongroundsauthorizedbytheCode Take note however that the security of tenure clauses in the Constitution and the Labor Code are not confined with the termination of employeremployee relationship but also is intended to protect the workers from unwarranted and unconsenteddemotionandtransfer
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It would also mean at the very least that where a penalty less punitive would suffice, whatever missteps may be committed by thelaboroughtnottobevisitedwithaconsequencesosevere MEANINGANDNATUREOFREINSTATEMENT Restoration to a state from which one has been removed or separated Safeguardandguranteeprovidedbythesecurityoftenureclause oftheConstitution Asarelief,itisavindicationagainstunjustifieddismissal ORDERFORREINSTATEMENT ACTUALREINSTATEMENT Decision of the Labor Arbiter to The award of backwages and other restore the employee to his benefits continue beyond the date previousposition of the Labor Arbiters decision orderingreinstatementandextends up to the time said order of reinstatement is actually implemented REINSTATEMENT BACKWAGES Restoration to a state from which Form of relief that restores the onehasbeenremovedorseparated income that was lost by reason of theunlawfuldismissal Note: 1. Theawardofoneisnotaconditionprecedentofanother 2. Twinremediesthataredistinctandseparatefromoneanother REINSTATEMENT NO LONGER PROPER WHEN THE POSITION DOESN'T ANYMOREEXIST If the position previously occupied by the employee no longer exists at the time of reinstatement, he should be given a substantianlyequivalentposition
COVERAGEOFTHESECURITYOFTENURECLAUSE Extendstoalltypesofemployees Managerialandconfidentialemployeesarenolessthanrankand fileemployeesinbeingentitledtothesecurityoftenure Even probationary employees are assured of their security of tenure for they cannot be arbitrarily dismissed during their probationaryperiodexceptforcausesprovidedforbylaw EXTENTANDLIMITSOFPROTECTION It can be invoked by an employee who was transferred to an assignment which required him to stay away from his family, although the same is considered a promotion in rank with the correspondingraiseinpay Theemployeessecurityoftenuredoesntgivehimsuchavested right in his position as would deprive the company of its prerogative to change his assignment or transfer him where he willbemosthelpful,andwherehistransferisnjotunreasonable, or inconvenient, nor prejudicial to him, and it doesn't involve a demotion in rank or diminution in salaries, benefits and other privileges, the employee may not complain that it amounts to a constructivedismissal It is the employers prerogative to terminate the employee especiallywhenthereisajustcause RELIEFSANDNORMALCONSEQUENCESINILLEGALDISMISSAL Employees who are illegally dismissed are entitled to reinstatementwithoutlossofseniorityrightsandotherprivileges and to their full backwages, inclusive of allowances and other benefits or their monetary equivalent, computed from time compensation was withheld up to time of their actual reinstatement
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However, if such doesn't exist, reinstatement shouldn't be orderedbecausethatwouldineffectcompeltheemployertodo theimpossible Inthiscase,separationpayisproper anatmosphereofapathyandantagonismmaybegeneratedasto adverselyaffecttheefficiencyandproductivity CIRCUMSTANCESTHATBARREINSTATEMENT 1. Dismissalforcause 2. Abandonmentofrightorlaches 3. Resignationofemployee 4. Physicalincapacityofemployee 5. Employeeacceptsretirementpay 6. Whenemploymentrelationshipbecomessostrained 7. Closureorcessationofoperations 8. Transferofbusinesstoinnocenttransferee 9. Economicreverses 10. Abolitionofposition 11. Prescription 12. Convictionofacrime 13. Notconducivetoindustrialharmony 14. Overagedemployee 15. Fiduciaryrelationship 16. Legalproscription WITHOUTLOSSOFSENIORITYRIGHTS,CONSTRUED Senioritylength of service of employees in a specified unit for the purposes of determining the order in which workers will be laidoff,promoted,transferred,orrehired The phrase denotes that benefits due a dismissed employees includingseniorityrightsandotherprivilegeswillnotbeaffected by his absence due to suspension of employment brought about bytheunlawfuldismissal MEANINGOFBACKWAGES Formofreliefthatrestorestheincomeofftheemployeethatwas lostbyreasonofhisillegaldismissal
REINSTATEMENT NOT PROPER, POSITION PREVIOUSLY OCCUPIED ALREADYFILLEDUP If the position previously occupied byu the dismissed employee has already been filled up, it would be unjustified for the employertodismissthepersonhiredandtoreplacethedismissed employeejusttomakeavailablethepositionforthelatter Proper remedy would be to reinstate him to a substantially equivalentposition REINSTATEMENTNOTPROPER,POSITIONNOTPREVIOUSLYOCCUPIEDBY HIM An employee who at the time of dismissal was occupying a temporary or lower position cannot be ordered reinstated to a permanentorhigherpositionforhedidn'tpreviouslyoccupysuch position SEPARATIONPAYINLIEUOFREINSTATEMENT 1. Reinstatementcannolongerbeeffectedinviewoftherealitesof thesituation 2. Thatitwouldbeinimicaltotheemployersinterest 3. Thatreinstatementisnolongerfeasible 4. Thatitwillnotservethebestinterestsofthepartiesinvolved 5. Thatthecompanywouldbeprejudicedbytheworkerscontinued employment 6. Thatitwillnotservetheprudentpurposesaswhensupervening factshavetranspiredwhichmakeexecutionunjustorinequitable 7. Thatthereisaresultantstrainedrelationsbetweentheemployer and employee, where the employee concerned occupied a positionoftrustandconfidence,anditislikelythatifreinstated,
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Itisinfurtheranceandeffectuationofthepublicobjectivesofthe LCandisinthenatureofacommandupontheemployertomake publicreparationforhisviolationoftheLC
PAYMENTOFSEPARATIONPAY Amountthatanemployeereceivesatthetimeofseverancefrom the service and is designed to provide the employee with the wherewithal during the period that he is looking for another employment It is oriented to the future, the transitional period the dismissed employeemustundergobeforelocatingareplacementjob TwoinstanceswhenseparationpayMAYNOTBEPAID o Dismissalnotduetoseriousmisconduct o Such dismissal is not reflective of the employees moral characterif the offense involves moral turpitude, then separationpaymaynotbeawarded

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LABORLAW1REVIEWER/NOTES(VELOSO)

5. j. AgriculturalLandReformCode MartialLawtothepresent a. EmancipationofTenantsLaw b. PD442orLCP c. Antidiscriminationofwomeninlabor d. WageRationalizationLaw e. Etc.

Quasilegislative:IRR Quasijudicial: procedural rules on quasijudicial functions (EasternShippingLinescase) IRRhavetheforceandeffectoflawexceptadvisoryopinions

Article280: Regularv.Casual employment seasonal project temporary

Article279: Securityof tenureprovision twinreliefsof reinstatement andfull backwages

Article281: Probationary employee

e. DELACRUZV.NLRC,11DECEMBER2003 As a probationary employee, he enjoys only temporary employmentstatus.

Notice to emplo yer

Not conte mplat edin Article 277b

takenote:no vicariousliability (Iamnotmy brother'skeeper

Basedonwhathe receives;actual reinstatement Differentfrom separationpay: computedbased ondateof judgment

DUEPROCESSALSOAPPLIESTOMIGRANTWORKERS Itappliesevenifyouhaveatyrantemployer,stillnoncompliance wouldmeritdamagesbutnotreinstatement See:Abesco2006,Filemploy2006,DMAShipping2005

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