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Notes on Labor Standards(Chan) Arts 57-81 CHAPTER I APPRENTICES DEFINITION OF TERMS 1. Apprenticeship- practical training on the job supplemented by related theoretical instruction. 2. Apprentice- a worker covered by a written apprenticeship agreement with an individual employer or any entities recognized under apprenticeship 3. Apprenticeable occupation- any trade, form of employment or occupation which requires more than three (3) months of practical training on the job supplemented by theoretical instruction. 4. Apprenticeship agreement- an employment contract; the employer binds himself to train the apprentice and the apprentice accept terms of training. 5. Apprenticeship standards- written implementing plans and conditions of an apprenticeship program; should include the following: a. Those affecting employment of apprentices under different occupational conditions; b. Those involving the theoretical and proficiency tests for apprentices during their training; c. Areas and duration of work and study covered by on-the-job training and theoretical instruction of apprenticeable trades and occupations; and d. Those referring to the qualifications of trainers of apprentices.

6. Competency assessment- refers to the process of gathering and judging evidence in order to decide whether a person has achieved a standard of competency or competence standard. 7. Competency- based curriculum- refers to a specification for a course or subject (module) which describes all learning experience a student undergoes, generally including objectives, content, particularly the competencies to be learned, teaching methodology, prescribed assessment tasks, assessment guides and others. 8. Competency standards- refers to a written specification of the knowledge, skills, attitudes and values requires for the performance of a job, occupation or trade and the corresponding standard of performance required for these in the workplace. 9. Related theoretical instructions- refers to technical information based on apprenticeship standards approved by Bureau of Apprenticeship (BA) now TESDA which provides the apprentice theoretical competence in this trade. 10. On-the-job training- is the practical work experience through actual participation in productive activities given to or acquired by an apprentice. Art 57 A. There are 3 groups considered as special workers in the Labor Code: 1. Apprentices 2. Learners 3. Handicapped workers B. Distinguished from the special group of employees 1. Women 2. Minors

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3. Househelpers 4. Homeworkers C. APPRENTICESHIP PROGRAM TO BE IMPLEMENTED AND ADMINISTERED BY TESDA-by virtue of the TESDA Act of 1994 (RA 7796), under the Bureau of Local Employment (BLE) of DOLE now replaced by TESDA. All applicable systems and procedures in the TechnicalVocational Education and Training (TVET) are applied in this program. Although viewed as a training and employment program, greater attention is given to the skills acquisition of the apprentices. D. FUNCTIONS OF THE OFFICE OF APPRENTICESHIP: 1. To provide direction, policies and guidelines on the implementation of the apprenticeship system; 2. To accredit, coordinate, monitor and evaluate all apprenticeship schemes and programs implemented by various institutions and enterprises; 3. To establish a network of institutions and enterprises conducting apprenticeship schemes and programs; and 4. To perform such other powers and functions as may be authorized. Art 58 Definition of terms- some already mentioned earlier Art 59 A. Qualifications of an Apprentice: 1. Be at least 14 years of age; 2. Possess vocational aptitude and capacity for appropriate tests; and 3. Possess the ability to comprehend and follow oral and written instructions.

B. Qualifications of an Apprentice under the IRR of the Labor Code: 1. Be at least 15 years of age, provided those who are at least 15 years of age but less than 18 may be eligible for apprenticeship only in non-hazardous occupations; 2. Be physically fit for the occupation in which he desires to be trained; 3. Possess vocational aptitude and capacity for the particular occupation as established through appropriate tests; and 4. Possess the ability to comprehend and follow oral and written instructions. C. CONFLICT IN THE AGE REQUIREMENT- Art 59 of the Labor Code prescribes that the minimum age should be at least 14 years of age, however the minimum age requirement under its IRR is 15 years; the rule of legal hermeneutics should apply, if there is a conflict between the law and its IRR, the provision of the former should prevail the latter. D. VALIDITY OF THE PHYSICAL FITNESS REQUIREMENT UNDER THE IRR- Total physical fitness not an absolute requirement, unless essential to the expeditious and effective learning of the occupation, only physical defects that would impede effective performance. E. CERTIFICATE OF COMPLETION OF APPRENTICESHIPconstitutes the evidence of the skills in accordance with the national skills established by DOLE. This certificate shall be issued upon completion of training. Art 60. A. EMPLOYMENT OF APPRENTICES- Only employers in the highly technical industries may employ apprentices and only in apprenticeable occupations approved by DOLE.

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Highly technical industries refers to trade, business, enterprise or other activity engaged in the application of advanced technology. B. IDENTIFICATION AND APPROVAL OF NEW OCCUPATIONS FOR APPRENTICESHIP PROGRAMS SHALL BE BASED ON PRIORITY OCCUPATIONS IDENTIFIED BY TESDA BOARD and the industry in addition to specific requests by partner enterprises. An enterprise is a participating establishment that directly engages an apprentice based on an approved program. C. NUMBER OF APPRENTICES TO BE TAKEN IN BY COMPANIES- only up to a maximum of 20% of its total regular workforce. D. REQUIREMENTS FOR ENTERPRISES WHO WILL PARTICIPATE IN THE APPRENTICESHIP PROGRAM: 1. Letter of Application signifying intention to register 2. Curriculum Design/Skills Training Outline 3. Certification that the number of apprentices to be hired is not more than 20% of the total regular workforce. E. CERTIFICATE OF REGISTRATION- is a document issued by TESDA granting authority to a participating enterprise to offer program in a particular occupation. F. REGISTRATION CERTIFICATES of companies that are not taking in apprentices for 2 consecutive years shall be revoked. Art 61. A. IN THE APPRENTICESHIP AGREEMENT- PERIOD OF APPRENTICESHIP SHALL NOT EXCEED 6 MONTHS; or for a period of more than 3 months but not over 6 months.

B. WAGE RATE- apprentice should start at 75% of the statutory minimum wage for the first 6 months. After the first 6 months he should be paid the full minimum wage including the full cost-of-living allowance. The effect of a legally mandated wage increase to the wage rate of apprentices, all recognized apprenticeship agreements are considered automatically modified in so far as their wage clauses are concerned to reflect the prescribed wage rates; whenever there are changes in the statutory minimum wage, a corresponding change should likewise be made in the wages of apprentices. He should likewise enjoy commensurate increases at periodic intervals until he starts receiving the prevailing minimum wage at the last stage of his training. An agreement providing for wage rates below the legal minimum wage, in no case shall start below 75% of the applicable minimum wage, may be entered into if it is duly approved by the Sec of Labor and Employment. B. NO VALID APPRENTICESHIP TRAINING IN THE ABSENCE OF AN APPRENTICESHIP AGREEMENT- TESDA APPROVAL OF APPRENTICESHIP AGREEMENT, INDESPENSABLE FOR ITS VALIDITY; This is to ensure the protection of apprentices and to prevent possible abuses by prospective employers who may want to take advantage of the lower wage rates for apprentices and circumvent the right of the employees to be secure in their employment. Non registration of apprenticeship agreement will result in the regularity of employment of apprentice. C. ENTERPRISE HAS THE OPTION TO EMPLOY AN APPRENTICE EVEN PRIOR TO THE COMPLETION OF THE APPRENTICESHIP PERIOD.

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In the case of LEARNERS, a different rule is enunciated; in LEARNERSHIP the ENTERPRISE IN OBLIGED TO HIRE the learner after the lapse of the learnership period which should not be more than 3 months. D. IN CASE OF PROBATIONARY EMPLOYMENT WHERE THE JOB IS COVERED BY AN APPRENTICESHIP AGREEMENT- Art 281 should be correlated with Art 61where it explicitly provided that the period of apprenticeship shall not exceed 6 months unless a longer period is stipulated in the agreement, in the absence of any, an apprentice who is allowed to work beyond 6 months is presumed to be a regular employee and must be paid the regular minimum wage, allowances and benefits due a regular employee. Art 62. I PARTIES REQUIRED TO SIGN THE APPRENTICESHIP AGREEMENT- to be signed by the employer or his duly authorized representative and by the apprentice. An apprenticeship agreement with a minor should be signed in his behalf by his parent or guardian, or if the latter is not available, by an authorized representative of DOLE. II CREATION OF TRIPARTITE PLANT APPRENTICESHIP COMMITTEE- composed of management, labor and government representatives. III NON-TRIPARTITE APPRENTICESHIP COMMITTEES- if tripartism is not feasible; committee may be composed of: a. Technical personnel in the plant, trade or industry concerned; and b. Labor and management representatives.

Art 63. VENUE OF APPRENTICESHIP PROGRAMS- Any firm or employer etc may choose from the following schemes as training venue: a. program conducted entirely by and within the sponsoring firm, establishment or entity; b. conducted entirely within a TESDA training center, DepEd or other public training institution; c. initial training in trade fundamentals in a training center or other institution with subsequent actual work participation within the sponsoring firm or entity during the final stage of training. Art 64. A. APPRENTICESHIP SCHEMES MAY BE UNDERTAKEN AND SPONSORED BY: a. in the plant, shop or premises or firm concerned if organized by a single or individual employer or firm; or b. in the premises of one or several designated firms if sponsored by a group or association of employers or firms or by a civic organization; and c. in a Department of Labor Training Center or other public training institutions with which TESDA has made appropriate arrangements. B. EXPLICIT DESCRIPTION OF ON-THE-JOB TRAININGmust be specifically described in the apprenticeship standards of a particular program. Art 65. A. PROCEDURE FOR THE INVESTIGATION OF COMPLAINTS FOR ANY VIOLATION OF THE APPRENTICESHIP AGREEMENT: The investigation may be initiated in 2 ways: 1. upon complaint of any interested person; or 2.upon the initiative (motu propio) of the appropriate agency of the DOLE or its authorized representative.

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B. WHO MAY TERMINATE THE APPRENTICESHIP AGREEMENT- Either the employer or apprentice- the parties to an apprenticeship agreement may terminate the same after the probationary period, only for a valid cause. VALID CAUSES BY EMPLOYER: 1. Habitual absenteeism in the OJT and related theoretical instructions; 2. Willful disobedience of company rules or insubordination to lawful order of superior; 3. Poor physical condition, permanent disability or prolonged illness which incapacitates the apprentice from working; 4. Theft or malicious destruction of company property and/or equipment; 5. poor efficiency of performance on the job or in the classroom for a prolonged period despite warnings duly given to the apprentice; and 6. Engaging in violence or other forms of gross misconduct inside the employers premises. VALID CAUSES FOR TERMINATION BY APPRENTICE: 1. Substandard or deleterious working conditions within the employers premises; 2. Repeated violations by the employer of the terms of the apprenticeship agreement; 3. Cruel or inhuman treatment by the employer or his subordinates; 4. Personal problems which, in the opinion of the apprentice, shall prevent him from a satisfactory performance of his job; and 5. Bad health or continuing illness. Art 66. APPEAL TO THE SECRETARY OF LABOR AND EMPLOYMENT- Decision of the authorized agency of DOLE may be appealed by any aggrieved person to the Sec of Labor and Employment within 5 days from receipt of the

decision. The decision of the Sec of Labor and Employment shall be final and executory. However, the aggrieved party is not precluded from elevating the case to the CA by way of a petition for certiorari.- Judicial Review of Decisions by the DOLE Sec. Art 67. A. DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES- before a party is allowed to seek intervention of the court; he should have first availed of all the means of administrative process afforded him. If a remedy within the ambit of the administrative machinery can still be resorted to then such shall be exhausted first. The administrative process is intended to provide less expensive and prompt solutions to disputes. The courts for reasons of law, comity and convenience, will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given an opportunity to act and correct the errors committed in the administrative forum. EXCEPTIONS TO THIS PRINCIPLE OF EXHAUSTION: 1. when there is a violation of due process; 2. when the issue involved is purely a legal question; 3. when the administrative action is patently illegal amounting to lack or excess of jurisdiction; 4.when there is estoppels on the part of the administrative agency concerned; 5. when there is irreparable injury; 6. when the respondent is a department secretary who acts as an alter ego of the President, bear the implied and assumed approval of the latter; 7. when to require exhaustion of administrative remedies would be unreasonable; 8. when it would amount to a nullification of a claim; 9. when the subject matter is a private land, in land case proceedings;

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10. when the rule does not provide a plain, speedy and adequate remedy; 11. when there are circumstances indicating the urgency of judicial interventions; 12. when no administrative review is provided by law; 13. where the rule of qualified political agency applies; and 14. when the issue of non-exhaustion of administrative remedies has been rendered. B. THE FOLLOWING ARE THE ADMINISTRATIVE REMEDIES: 1. Mediation and/or settlement of disputes involving violation of the apprenticeship agreement- the Plant Apprenticeship Committee (PAC) has the initial responsibility of settling differences arising out of apprenticeship agreements. PAC is tasked to mediate and/or settle in the first instance differences between the employer and the apprentices. 2. Decision on the dispute- in case of failure by PAC to settle issue, TESDA Provincial Office or its authorized representative should refer the case to the DOLE Regional/Provincial Office which has jurisdiction over the concerned company to investigate and render a decision. 3. Appeal to DOLE Secretary- Read Art 66. C. IN MANDAUE DINGHOW DIMSUM HOUSE CO., INC. VS NLRC, THE SC PROVIDED THE FOLLOWING EXCEPTIONS TO THE RULE THAT A MFR SHOULD BE FIRST FILED IN ACCORDANCE WITH THE EXAUSTION PRINCIPLE: 1. When the order is a patent nullity, as where the court a quo has no jurisdiction; 2. When the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;

3. Where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; 4. Where, under the circumstances, a MFR would be useless; 5. Where petitioner was deprived of due process and there is extreme urgency for relief. 6. Where, in a criminal case, relied from an order of arrest is urgent and the granting of such relief by the trial court is improbable. 7. Where the proceedings in the lower court are a nullity for lack of due process. 8. Where the issue raised is one purely of law or where public interest is involved. Art 68. Aptitude Testing of Applicants.- Competency assessment shall be administered to graduates of the Apprenticeship/learnership programs, whenever applicable. Competency Certificate shall be issued on the basis of demonstrated competencies for each trade by the enterprise. If entities, employers etc. do not have adequate facilities for the purpose, DOLE shall perform the service free of charge. Art 69. A. RATIO THEORETICAL INSTRUCTIONS AND OJT- the normal ratio is 100 hours of theoretical instructions for every 2,000 hours of practical or OJT. Theoretical instruction time for occupations requiring less than 2,000 hours for proficiency should be computed on the basis of such ratio- PRO-RATED. B. A prospective apprentice who has completed or otherwise attended a vocational course in a duly recognized trade or vocational school or training center or who has had previous experience in trade or occupation in which he desires to be

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apprenticed should be given due credit. Such credit should be expressed in terms of hours. Art 70. A. GENERAL RULE- THE ORGANIZATION OF APPRENTICESHIP PROGRAMS IS PRIMARILY A VOLUNTARY UNDERTAKING OF EMPLOYERS B. EXCEPTIONS: 1. when national security or particular requirements of economic development so demand, the President may require compulsory training of apprentices in certain trades, occupations, jobs or employment levels where shortage of trained manpower is deemed critical as determined by the Sec of Labor and Employment. 2. when services of foreign technicians are utilized by private companies in apprenticeable trades, said companies are required to set up appropriate apprenticeship programs. Art 71. A. DEDUCTIBILITY OF TRAINING COSTS- An additional deduction from taxable income of of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices shall be granted to persons or enterprises organizing the apprenticeship program. B. REQUISITES FOR A DEDUCTION FROM TAXABLE INCOME ON THE COST OF TRAINING THE APPRENTICES: 1.The program is duly recognized by DOLE; 2. The deduction shall not exceed 10% of direct labor wage; and 3. The person or enterprise who or which wishes to avail himself or itself of this incentive should pay his apprentices the minimum wage. Art 72.

A. DOLE THROUGH TESDA MAY AUTHORIZE THE HIRING OF APPRENTICES WITHOUT COMPENSATION UNDER THE FOLLOWING SITUATIONS: 1. when the training on the job as an apprentice is required by the school curriculum as a prerequisite for graduation; or 2. when the same training is required for taking a government board examination. B. LEGAL INTERNSHIP OR APPRENTICESHIP- a law student shall undergo with any duly accredited private or public law office or firm or legal assistance group anytime during the law course for a specific period that the Legal Education Board may decide, but not to exceed 12 hours. CHAPTER II LEARNERS DEFINITION OF TERMS 1. Learners- are persons hired as trainees in semi- skilled and other occupations which are non-apprenticeable and which may be learned through practical training on the job for a period not exceeding 3 months, whether or not supplemented by theoretical instructions. 2. Learnership- refers to any practical training on learnable occupation which may or may not be supplemented by related theoretical instructions. 3. Learnership agreement- refers to the employment and training contract entered into between the employer and the learner. Art 73. A. GOVERNING LAWS: 1. RA No. 7796 TESDA ACT of 1994 and its IRR;

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2. PD No. 442 LABOR CODE OF THE PHILIPPINES and its IRR 3. EO No. 111 issued on December 24, 1986 by Pres Cory Aquino. B. The identification and approval of new occupations for learnership programs should be based on priority occupations identified by TESDA Board and the industry in addition to specific requests by prospective partner enterprises. C. ENTERPRISES WHO WISH TP APRTICIAPTE IN THE LEARNERSHIP PROGRAM ARE REQUIRED TO SUBMIT THE FOLLOWING: 1. Letter of application signifying intention to register a Learnership program; 2. Curriculum Design/Skills Training Outline; 3. Certification that the number of learners to be hired is not more than 20% of the total regular workforce- MAXIMUM NUMBER OF LEARNERS THAT COMPANIES MAY TAKE IN Art 74. CIRCUMSTANCES THAT JUSTIFY THE HIRING OF LEARNERS: 1. when no experiences workers are available; 2. the employment of learners is necessary to prevent curtailment of employment opportunities; and 3. the employment does not create unfair competition in terms of labor costs or impair or lower working standards. Art 75. A. A LEARNERSHIP AGREEMENT SHALL INCLUDE AS BASIC STIPULATIONS, THE FOLLOWING: 1. Name and address of the learner; 2. Occupation to be learned and the duration of the learnership (training) period, which shall not exceed 3 months;

3. The wage or salary rate of the learner which shall be at least 75% of the applicable minimum wage; and 4. A commitment to employ the learner, if he so desires, as a regular employee upon completion of the training. Agreement to be inspected by the Sec of Labor or his representative. B. PERIOD OF LEARNERSHIP- shall not be more than 3 months. C. OBLIGATION TO HIRE AS EMPLOYEE AFTER LEARNERSHIP PERIOD- legal basis provided in the learnership agreement where the enterprise is required to make a commitment to employ learners, if they so desire, as regular employees upon completion of the training. ALL LEARNERS WHO HAVE BEEN ALLOWED OR SUFFERED TO WORK DURING THE FIRST 2 MONTHS OF THE LEARNERSHIP ARE ALREADY DEEMED REGULAR EMPLOYEES IF THEIR TRAINING IS TERMINATED BY THE EMPLOYER BEFORE THE END OF THE STIPULATED PERIOD WITHOUT LEARNERS FAULT.

Art 76. LEARNERS EMPLOYED IN PIECEWORK- during the training shall be paid in full for the work done, to protect learners who may be exploited as a consequence of the piece-work or incentive-rate arrangement. CHAPTER III HANDICAPPED WORKERS

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DEFINITION OF TERMS: 1. Disabled persons- now known as Persons with disabilitythose suffering from restriction or different abilities as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being. 2. Impairment- refers to any loss, diminution or aberration of psychological, physiological or anatomical structure or function. 3. Disability- means: a. physical or mental impairment that substantially limits one or more psychological, physiological or anatomical functions of an individual or activities of such individual; b. a record of such an impairment; c. being regarded as having such an impairment; 4. Handicap- refers to a disadvantage for a given individual, resulting from an impairment of disability that limits or prevents the function or activity that is considered normal given the age and sex of the individual. 5. Reasonable accommodations- include: a. improvement of existing facilities accessible to and usable by persons with disability b. modification of work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices. 6. Marginalized Persons with Disability- refers to persons with disability who lack access to rehabilitative services and opportunities to be able to participate fully in socio-economic activities and who have no means of livelihood and whose incomes fall below the poverty threshold. 7. Qualified Individual with a Disability- an individual with a disability who, with or without reasonable accommodations, can

perform the essential functions of the employment position that such individual holds or desires. However, consideration shall be given to the employers judgment as to what functions of a job are essential; description shall be considered an evidence of the essential functions of the job. 8. Covered entity- an employer, employment agency, labor organization or joint-labor management committee. 9. Sheltered Employment- refers to the provision of productive work for persons with disability through workshops providing special facilities, income-producing projects or homework schemes giving them the opportunity to earn a living. Art 78. A. HANDICAPPED WORKERS- are those whose earning capacity is impaired: 1. by age 2. physical deficiency 3. mental deficiency 4. injury. B. A HW is one whose efficiency or quality of work is impaired by his disability in relation to his work. The disability of the person is not in any way or manner related to the work for which he is hired or employed, he may have a disability but since the same is not related to his work, he cannot be considered a HW insofar as that particular work is concerned. Art 79 A. JUSTIFICATION FOR EMPLOYMENT OF HW UNDER THE FOLLOWING CIRCUMSTANCES: 1. when their employment is necessary to prevent curtailment of employment opportunities; 2. when it does not create unfair competition in labor costs or impair or lower working standards.

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B. JUSTIFICATION FOR EMPLOYMENT OF PERSONS WITH DISABILITY- RA No. 7277 MAGNA CARTA FOR PERSONS WITH DISABILITY entitled persons with disability to equal opportunity for employment. A qualified employee with disability shall be subject to same terms and conditions of employment and same compensation, privilege, benefits, fringe benefits, incentives or allowances as a qualified and abled person. 5% of all casual emergency and contractual positions in DSWD, Health, Education and other government agencies, offices, corporations engaged in social development shall be reserved for persons with disability. C. INCENTIVES FOR EMPLOYERS WHO EMPLOY PERSONS WITH DISABILITY EITHER AS AREGULAR EMPLOYEE, APPRENTICE OR LEARNER, shall be entitled to an additional deduction from their gross income equivalent to 25% of the total amount paid as salaries and wages to persons with disability provided that such entities could present proof as certified by DOLE that persons with disability are under their employ and these employees are accredited with DOLE and DOH as to their disability, skills and qualifications. Private entities that will improve or modify their physical facilities to provide reasonable accommodation for PWD shall also be entitled to an additional deduction from their net taxable income equivalent to 50% of the direct costs of improvements and modifications. Such improvements or modifications shall not pertain to improvements or modifications under the BP 344, An Act to enhance the mobility of disabled persons by requiring certain buildings, institutions, etc to install facilities. D. DISCRIMINATION ON EMPLOYMENT PROHIBITED Art 80.

A. WAGE RATE OF HW OR PWD NO LONGER 75% OF MINIMUM WAGE BUT FULL AMOUNT THEREOF- Under the Magna Carta for PWDs, persons with disability are entitled to equal opportunity for employment and resultantly, are subject to same terms and conditions of employment and same compensation and benefits as a qualified able-bodies person. Art 81. A. ELIGIBILITY OF HW OR PWD FOR APPRENTICESHIP OR LEARNERSHIP- provided that their handicap is not as much as to effectively impede the performance of job operations in the particular occupation for which they are hired and provided that after their period of apprenticeship, if performance is found satisfactory, they shall be eligible for employment. B. A HANDICAPPED WORKER OR PWD HIRED AS APPRENTICE OR LEARNER SHALL BE PAID NOT LESS THAN 75% OF THE APPLICABLE MINIMUM WAGE. IF THE HANDICAPPED WORKER, IS HIRED AS A LEARNER AND EMPLOYED IN PIECE OR INCENTIVE-RATE JOBS DURING THE TRAINING PERIOD, HE SHALL BE PAID 100% OF THE APPLICABLE MINIMUM WAGE.