Sie sind auf Seite 1von 17

LABOR LAWS INTRODUCTION Coverage (Course Description) -Constitutional rights of workers, and the role of labor in gov't efforts

to promote just and humane working relationship between capital & labor - basic policies of gov't on organized and unorganized labor - employee benefits Our Labor Law deals w/ provisions governing the relations between capital and labor, employment standards, and a legal framework for negotiating, adjusting, & administering those standards and other incidents of employment. It is divided into 2 aspects: Labor Standards Law: this sets out the minimum terms, conditions & benefits of employment provided by the employer w/ c are matters of legal rights of the employee. Labor Standards: minimum requirements prescribed by law relating to wages, hours of work, COLA, and other monetary & welfare benefits (occupational, safety, hazard, health). - Books One to Four Labor Relations Law defines the status, rights & duties, and the institutional mechanisms that govern the individual & collective interactions of employers, employees or their representatives. Books Five and Six The aim and the reason and, therefore, the justification of labor laws is Social Justice. It prescribes equality of the people, attainment of decent quality of life through humane productive efforts. - see Art. II, sec. 9 to 11 and Art. XIII, sec. 1 & 2 of the Constitution. Declaration of Basic Policy - Art. 3, Labor Code ARTICLE 3. Declaration of basic policy. - The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. chanroblespublishingcompany DOLE: the primary policy-making, programing, coordinating, and administrative entity of the executive branch of the government in the field of labor and employment. - promotion of gainful employment opportunities and the optimization of the development and utilization of the country's manpower resources - advancement of worker's welfare

- maintenance of industrial peace

CONSTITUIONAL PROVISON ON LABOR - Art. XIII, sec. 3 - The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.cralaw The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.cralaw The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. - Art. II, sec. 18. - The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.cra

A. BASIC GOALS OF PRE-EMPLOYMENT - Art. 12, Labor Code PRE-EMPLOYMENT ARTICLE 12. Statement of objectives. - It is the policy of the State: chanroblespublishingcompany a) To promote and maintain a state of full employment through improved manpower training, allocation and utilization; b) To protect every citizen desiring to work locally or overseas by securing for him the best possible terms and conditions of employment; c) To facilitate a free choice of available employment by persons seeking work in conformity with the national interest; d) To facilitate and regulate the movement of workers in conformity with the national interest; PRESIDENTIAL DECREE No. 442 THE LABOR CODE OF THE PHILIPPINES 5 e) To regulate the employment of aliens, including the establishment of a registration and/or work permit system; f) To strengthen the network of public employment offices and rationalize the participation of the private sector in the recruitment and placement of workers, locally and overseas, to serve national development objectives; chanroblespublishingcompany

g) To insure careful selection of Filipino workers for overseas employment in order to protect the good name of the Philippines abroad.

TERMS DEFINED "NSB" means the National Seamen Board.cralaw "OEDB" means the Overseas Employment Development Board.cralaw "Private recruitment entity" means any person or entity engaged in the recruitment and placement of workers locally or overseas, without charging, directly or indirectly, any fee against the worker.cralaw "Private employment agency" means any person or entity engaged in the recruitment and placement of workers for a fee which is charged directly against the workers or employers, or both. "Non-resident alien" means any alien already in the Philippines or seeking admission to the Philippines to obtain employment in any public or private enterprise.cralaw "Seaman" means any person employed in maritime navigation.cralaw "Understudy" means any qualified Filipino citizen designated by a local employer to be trained by a foreign national allowed to work in the country by virtue of an employment permit granted to him by the Secretary of Labor and Employment under an approved understudy training program.cralaw "Recruitment and placement" refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers and includes referrals, contract services, promising or advertising employment locally or abroad, whether for profit or not: Provided, That any person or entity which in any manner, offers or promises employment for a fee to two or more persons shall be deemed engaged in recruitment and placement.cralaw "Placement fees" means the amount charged by a private employment agency from an applicant worker for its services in the recruitment and placement of said worker.cralaw "Contract Worker" means any person working or who has worked overseas under a valid employment contract and shall include seamen. "Manning Agency" refers to any person or entity duly licensed by the Secretary to recruit seamen for vessels plying international waters and for related maritime activities.cralaw "Name Hire". is a worker who is able to secure employment overseas on his own without the assistance or participation of any agency or entity.

C. AGENCIES CHARGED WITH THE EMPLOYMENT PROGRAM - BLE: for local employment - POEA: for overseas employment PESO: Public Employment Service Office (R.A. 8759)

- employment service, information center. Ex. Job Fairs, Seminars, Livelihood programs Recruitment In general, only public employment offices can (Art. 16) However, private entities may (Art. 25) Based on the IRR, the following entities may recruit: a) Public employment offices, b) private recruitment entities, C) Private employment agencies, d) shipping and manning agents or representatives, e) POEA f) construction contractors if authorized to operate by DOLE and the Construction Industry Authority g) members of the Diplomatic Corps thru the DOLE h) those authorized by the Secretary of Labor

D. PARTICIPATION OF FOREIGN LABOR ORGANIZATION

E. REMITTANCE OF FOREIGN EARNINGS . -mandatory to remit portion (50% to 80%)

F. QUALIFICATIONS OF RECRUITMENT OFFICES - see art. 25 - travel agencies and sales agencies of airline companies are prohibited to recruit (art. 26) - should be Filipino citizens or 75% Filipino owned corporations - capitalization should be substantial (2M) - art. 28 - non-transferability of license or authority. (art. 29) - registration fees for applicants for license (art. 30) - fees to be paid by principal: visa fee, airfare, POEA processing fee, OWWA membership fee (sec. 2, POEA IRR) - fees to be paid by worker: passport, NBI/Police/baranggay clearance, authentication, birth certificate, trade test, medical fees (sec. 3, ibid) G. PROHIBITIONS ON RECRUITMENT Art. 34. Prohibited Practices a) see sec. 32; also sec. 3, Rule V, Part II, IRR (fees collected from worker only after obtaining employment through agency) b) includes fake employment documents to the worker

d) mere attempt is sufficient; no need for the worker to be actually induced or did quit

H. EMPLOYMENT REQUIREMENT Human Resources Development (Book Two) 1. Objective of Human Resource Development Program (Art. 43) 2. Definition of Important Terms (Art. 44) 3. Different Gov't Agencies w/ the Development of: a) Manpower Skills (Art. 47) b) National Manpower & Youth Council (Art. 45) c) Industry Board (Art. 50) d) Skills Center (Art. 47) e) Skills Standard (Art. 48) 4. Incentive Schemes for Private Sector to join the Development Program (Art. 52) 5. Training & Employment of Social Workers, Apprentices, Learners, & Handicapped Workers (Articles 57-81) . NOTE: READ THE ABOVE ARTICLES IN THE LABOR CODE RULE VI Apprenticeship Training and Employment of Special Workers SECTION 1. Objectives. The promotion, development, and maintenance of apprenticeship programs shall have the following objectives: (a) To meet the needs of the economy for training manpower in the widest possible range of employment; (b) To establish a national apprenticeship program through the participation of employers, workers, government, civic and other groups; and (c) To establish apprenticeship standards for the protection of apprentices and upgrading of skills. SECTION 2. Definition of terms. (a) "Apprenticeship" means any training on the job supplemented by related theoretical instructions involving apprenticeable occupations and trades as may be approved by the Secretary of Labor and Employment. (b) "Apprentice" is a worker who is covered by a written apprenticeship agreement with an employer. (c) "Apprenticeship agreement" is a written employment contract wherein the employer binds himself to train the apprentice and the latter in turn agrees to work for the employer. (d) "Apprenticeable occupation" means any trade, form of employment or occupation approved for apprenticeship by the Secretary of Labor and Employment, which requires for proficiency more than three months of practical training on the job supplemented by related theoretical instructions. (e) "Apprenticeship standards" means the written implementing plans and conditions of an apprenticeship program.

(f) "Bureau" means the Bureau of Apprenticeship. (g) "Employer" means the individual firm or any other entity qualified to hire apprentice under the Code. (h) "On the job training" is the practical work experience through actual participation in productive activities given to or acquired by an apprentice. (i) "Related theoretical instructions" means technical information based on apprenticeship standards approved by the Bureau designed to provide the apprentice theoretical competence in his trade. (j) "Highly Technical Industries" means trade, business, enterprise, industry, or other activity, which is engaged in the application of advanced technology. SECTION 3. Voluntary nature of apprenticeship program. The organization of apprenticeship program shall be primarily a voluntary undertaking of employers, except as otherwise provided. SECTION 4. Venue of on-the-job training. The practical aspect of on-the-job training of apprentices may be undertaken: (a) In the plant, shop or premises of the employer or firm concerned if the apprenticeship program is organized by an individual employer or firm; (b) In the premises of one or several firms designated for the purpose by the organizer of the program if such organizer is an association of employers, civic group and the like; and (c) In a Department of Labor and Employment Training Center or other public training institutions with which the Bureau has made appropriate arrangements. SECTION 5. On-the-job training to be explicitly described. The manner in which practical or on-the-job training shall be provided must be specifically described in the apprenticeship standards of a particular program. SECTION 6. Recognition of apprenticeship programs. To enjoy the benefits which the Bureau or other government agencies may extend to duly recognized apprenticeship programs, an employer shall submit in quadruplicate to the Training Section of the appropriate Apprenticeship Division of the appropriate Regional Office the apprenticeship standards of the proposed program prepared in accordance with guidelines set by the Bureau.cralaw If the apprenticeship standards are found in order, a certificate of recognition shall be issued by the Apprenticeship Division concerned within five (5) days from receipt thereof.cralaw SECTION 7. Benefits accruing to recognition. An entity with a recognized apprenticeship program shall be entitled to technical and other assistance from the Bureau and other government agencies and to the corresponding training-expense deduction from its income tax. The rate of such tax deduction incentive and the procedure of availment thereof are provided in Section 42 of this Rule.cralaw SECTION 8. Trades to be included in apprenticeship programs. Only trades and occupations declared apprenticeable by the Secretary of Labor and Employment may be included in apprenticeship programs.cralaw

SECTION 9. Who may establish programs. Any entity, whether or not organized for profit may establish or sponsor apprenticeship programs and employ apprentices.cralaw SECTION 10. Assistance by non-profit entities. In lieu of organizing programs, non-profit entities may: (a) Execute an agreement with firms of their choice with on-going apprenticeship programs, directly or through the Department of Labor and Employment, assuming responsibility for training deserving apprentices selected by an employer who shall pay the apprentices; (b) Give financial and other contributions for the promotion of apprenticeship programs; or (c) Provide other forms of assistance. Apprentices who train under such programs shall be properly identified in apprenticeship agreements with the employer. However, responsibility for compliance with employees' compensation, social security, medicare and other labor laws shall remain with the employer who benefits from the productive efforts of the apprentices. ARTICLE 59. Qualifications of apprentice. - To qualify as an apprentice, a person shall: (a) Be at least fourteen (14) years of age; (b) Possess vocational aptitude and capacity for appropriate tests; and (c) Possess the ability to comprehend and follow oral and written instructions. chanroblespublishingcompany Trade and industry associations may recommend to the Secretary of Labor appropriate educational requirements for different occupations. SECTION 11. Qualifications of apprentices. To qualify as apprentice, an applicant shall: (a) Be at least fifteen years of age; provided those who are at least fifteen years of age but less than eighteen may be eligible for apprenticeship only in non-hazardous occupations; (b) Be physically fit for the occupation in which he desires to be trained; (c) Possess vocational aptitude and capacity for the particular occupation as established through appropriate tests; and (d) Possess the ability to comprehend and follow oral and written instructions. Trade and industry associations may, however, recommend to the Secretary of Labor and Employment appropriate educational qualifications for apprentices in certain occupations. Such qualifications, if approved, shall be the educational requirements for apprenticeship in such occupations unless waived by an employer in favor of an applicant who has demonstrated exceptional ability. A certification explaining briefly the ground for such waiver, and signed by the person in charge of the program, shall be attached to the apprenticeship agreement of the applicant concerned.

SECTION 18. Contents of agreement. Every apprenticeship agreement shall include the following: (a) The full names and addresses of the contracting parties; (b) Date of birth of the apprentice; (c) Name of the trade, occupation or job in which the apprentice will be trained and the dates on which such training will begin and will approximately end; (d) The approximate number of hours of on-the-job training as well as of supplementary theoretical instructions which the apprentice shall undergo during his training; (e) A schedule of the work processes of the trade/occupation in which the apprentice shall be trained and the approximate time to be spent on the job in each process; (f) The graduated scale of wages to be paid the apprentice; (g) The probationary period of the apprentice during which either party may summarily terminate their agreement; and (h) A clause that if the employer is unable to fulfill his training obligation, he may transfer the agreement, with the consent of the apprentice, to any other employer who is willing to assume such obligation. SECTION 19. Apprenticeship period. The period of apprenticeship shall not exceed six (6) months. (a) Four hundred (400) hours or two (2) months for trades or occupations which normally require a year or more for proficiency; and (b) Two hundred (200) hours or one (1) month for occupations and jobs which require more than three months but less than one year for proficiency. At least five (5) working days before the actual date of termination, the party terminating shall serve a written notice on the other, stating the reason for such decision and a copy of said notice shall be furnished the Apprenticeship Division concerned. SECTION 20. Hours of work. Hours of work of the apprentice shall not exceed the maximum number of hours of work prescribed by law, if any, for a worker of his age and sex. Time spent in related theoretical instructions shall be considered as hours of work and shall be reckoned jointly with on-the-job training time in computing in the agreement the appropriate periods for giving wage increases to the apprentice.cralaw An apprentice not otherwise barred by law from working eight hours a day may be requested by his employer to work overtime and paid accordingly, provided there are no available regular workers to do the job, and the overtime work thus rendered is duly credited toward his training time.cralaw SECTION 25. Valid cause to terminate agreement. Either party to an agreement may terminate the same after the probationary period only for a valid cause. The following are valid causes for termination: By the employer (a) Habitual absenteeism in on-the-job training and related theoretical instructions; (b) Willful disobedience of company rules or insubordination to lawful order of a superior; (c) Poor physical condition, permanent disability or prolonged illness which incapacitates the apprentice from working;

(d) Theft or malicious destruction of company property and/or equipment; (e) Poor efficiency or performance on the job or in the classroom for a prolonged period despite warnings duly given to the apprentice; and (f) Engaging in violence or other forms of gross misconduct inside the employer's premises. By the apprentice (a) Substandard or deleterious working conditions within the employer's premises: (b) Repeated violations by the employer of the terms of the apprenticeship agreement; (c) Cruel or inhuman treatment by the employer or his subordinates; (d) Personal problems which in the opinion of the apprentice shall prevent him from a satisfactory performance of his job; and (e) Bad health or continuing illness. SECTION 29. Wages. The wage rate of the apprentice shall start at seventy five (75%) per cent of the statutory minimum wage for the first six (6) months; thereafter, he shall be paid the full minimum wage, including the full cost of living allowance.cralaw SECTION 40. Apprenticeship without compensation. The Secretary of Labor and Employment through the Apprenticeship Division, may authorize the hiring of apprentices without compensation whose training on the job is required by the school curriculum as a prerequisite for graduation or for taking a government board examination.cralaw SECTION 41. Compulsory apprenticeship. (a) When grave national emergencies, particularly those involving the security of the state, arise or particular requirements of economic development so demand, the Secretary of Labor and Employment may recommend to the President of the Philippines the compulsory training of apprentices required in a certain trades, occupations, jobs or employment levels where shortage of trained manpower is deemed critical; (b) Where services of foreign technicians are utilized by private companies in apprenticeable trades said companies are required to set up appropriate apprenticeship programs.cralaw LEARNERS ARTICLE 73. Learners defined. - Learners are persons hired as trainees in semiskilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed three (3) months. chanroblespublishingcompany ARTICLE 74. When learners may be hired. - Learners may be employed when no experienced workers are available, the employment of learners is necessary to prevent curtailment of employment opportunities, and the employment does not create unfair competition in terms of labor costs or impair or lower working

standards. chanroblespublishingcompany PRESIDENTIAL DECREE No. 442 THE LABOR CODE OF THE PHILIPPINES 34 ARTICLE 75. Learnership agreement. - Any employer desiring to employ learners shall enter into a learnership agreement with them, which agreement shall include: chanroblespublishingcompany (a) The names and addresses of the learners; (b) The duration of the learnership period, which shall not exceed three (3) months; (c) The wages or salary rates of the learners which shall begin at not less than seventy-five percent (75%) of the applicable minimum wage; and chanroblespublishingcompany (d) A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners. chanroblespublishingcompany The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representative. ARTICLE 76. Learners in piecework. - Learners employed in piece or incentiverate jobs during the training period shall be paid in full for the work done. ARTICLE 77. Penalty clause. - Any violation of this Chapter or its implementing rules and regulations shall be subject to the general penalty clause provided for in this Code. PRESIDENTIAL DECREE No. 442 THE LABOR CODE OF THE PHILIPPINES 35

RULE VII Learners SECTION 1. Definition of terms. (a) "Learner" is a person hired as a trainee in industrial occupations which are non-apprenticeable and which may be learned through practical training on the job for a period not exceeding three (3) months, whether or not such practical training is supplemented by theoretical instructions.cralaw (b) "Learnership agreement" refers to the employment and training contract entered into between the employer and the learner.cralaw SECTION 2. When learners may be employed. Learners may be employed when no experienced workers are available, the employment of learners being necessary to prevent curtailment of employment opportunities, and such employment will not create unfair competition in terms of labor costs nor impair working standards.cralaw SECTION 3. Approval of learnership program. Any employer who intends to employ learners shall submit in writing to the Apprenticeship Division of the Regional Office concerned, copy furnished the Bureau, his learnership program, which the Division shall evaluate to determine if the occupation involved is learnable and the program is sufficient for the purpose of training. Within five (5)

working days from receipt of the program, the Division shall make known its decision to the employer concerned. A learnership program shall be subject to periodic inspection by the Secretary of Labor and Employment or his duly authorized representative.cralaw SECTION 4. Contents of learnership agreement. A learnership agreement, shall include: (a) The names and addresses of the employer and the learner; (b) The occupation to be learned and the duration of the training period which shall not exceed three (3) months; (c) The wage of learner which shall be at least 75 percent of the applicable minimum wage; and (d) A commitment to employ the learner, if he so desires, as a regular employee upon completion of training.cralaw A learner who has worked during the first two months shall be deemed a regular employee if training is terminated by the employer before the end of the stipulated period through no fault of the learner.cralaw SECTION 5. Parties to learnership agreement. Every learnership agreement shall be signed by the employer or his duly authorized agent and by the learner. A learnership agreement with a minor shall be signed by the learner with the conformity of his parent or guardian.cralaw The employer shall furnish a copy each of the learnership agreement to the learner, the Bureau, and the Apprenticeship Division of the appropriate Regional Office within five (5) working days following its execution by the parties.cralaw SECTION 6. Employment of minors as learners. A minor below fifteen (15) years of age shall not be eligible for employment as a learner. Those below eighteen (18) years of age may only be employed in non-hazardous occupations.cralaw SECTION 7. Cancellation of learnership programs. The Secretary of Labor and Employment may cancel any learnership program if upon inquiry it is found that the justification for the program no longer exists. HANDICAPPED WORKERS ARTICLE 78. Definition. - Handicapped workers are those whose earning capacity is impaired by age or physical or mental deficiency or injury. ARTICLE 79. When employable. - Handicapped workers may be employed when their employment is necessary to prevent curtailment of employment opportunities and when it does not create unfair competition in labor costs or impair or lower working standards. ARTICLE 80. Employment agreement. - Any employer who employs handicapped workers shall enter into an employment agreement with them, which agreement shall include: (a) The names and addresses of the handicapped workers to be employed;

(b) The rate to be paid the handicapped workers which shall not be less than seventy five (75%) percent of the applicable legal minimum wage; (c) The duration of employment period; and (d) The work to be performed by handicapped workers. The employment agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representatives. ARTICLE 81. Eligibility for apprenticeship. - Subject to the appropriate provisions of this Code, handicapped workers may be hired as apprentices or learners if their handicap is not such as to effectively PRESIDENTIAL DECREE No. 442 THE LABOR CODE OF THE PHILIPPINES 36 impede the performance of job operations in the particular occupations for which they are hired.

RULE VIII Handicapped Workers SECTION 1. Definition of terms. (a) "Handicapped workers" are those whose earning capacity is impaired by age or physical or mental deficiency or injury.cralaw (b) "Employment agreement" is the contract of employment entered into between the employer and the handicapped worker.cralaw SECTION 2. When handicapped workers may be employed. Handicapped workers may be employed when their employment is necessary to prevent curtailment of employment opportunities and when it does not create unfair competition in labor costs or impair working standards.cralaw SECTION 3. Contents of employment agreement. An employer who hires a handicapped worker shall enter into an employment agreement with the latter which shall include: (a) The names and addresses of the employer and the handicapped worker; (b) The rate of pay of the handicapped worker which shall not be less than seventyfive (75%) percent of the legal minimum wage; (c) The nature of work to be performed by the handicapped worker; and (d) The duration of the employment.cralaw SECTION 5. Eligibility for apprenticeship. Handicapped workers shall not be precluded from employment as apprentices or learners if their handicap is not such as to effectively impede the performance of job operations in the particular trade or occupation which is the subject of the apprenticeship or learnership program.

Book III - CONDITIONS OF EMPLOYMENT

Title I - Working Conditions and Rest Periods Art. 82. Coverage. - The provisions of this Title shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations. chanroblespublishingcompany As used herein, managerial employees refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. chanroblespublishingcompany Field personnel shall refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty. IRR - RULE I - Hours of Work SECTION 1. General statement on coverage. The provisions of this Rule shall apply to all employees in all establishments and undertakings, whether operated for profit or not not, exept to those specifically exempted under Section 2 hereof.cralaw SECTION 2. Exemption. The provisions of this Rule shall not apply to the following persons if they qualify for exemption under the conditions set forth herein: (a) Government employees whether employed by the National Government or any of its political subdivision, including those employed in government-owned and/or controlled corporations; - they are governed by the civil service law, not the labor code (b) Managerial employees, if they meet all of the following conditions: (1) Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof.cralaw . (2) They customarily and regularly direct the work of two or more employees therein.cralaw (3) They have the authority to hire or fire employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight.cralaw (c) Officers or members of a managerial staff if they perform the following duties and responsibilities: (1) The primary duty consists of the performance of work directly related to management policies of their employer; (2) Customarily and regularly exercise discretion and independent judgment; and (3) (i) Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof; or (ii) execute under general supervision work along specialized or technical lines requiring special training, experience, or

knowledge; or (iii) execute, under general supervision, special assignments and tasks; and (4) Who do not devote more than 20 percent of their hours worked in a work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1), (2) and (3) above.cralaw (d) Domestic servants and persons in the personal service of another if they perform such services in the employer's home which are usually necessary or desirable for the maintenance and enjoyment thereof, or minister to the personal comfort, convenience, or safety of the employer as well as the members of his employer's household.cralaw (e) Workers who are paid by results, including those who are paid on piece-work, "takay," "pakiao" or task basis, and other non-time work if their output rates are in accordance with the standards prescribed under Section 8, Rule VII, Book Three of these regulations, or where such rates have been fixed by the Secretary of Labor and Employment in accordance with the aforesaid Section.cralaw - they are paid by results and not on the basis of the time spent in working. Ex. Plowing a piece of land, paint the fence, dig a ditch. (f) Non-agricultural field personnel if they regularly perform their duties away from the principal or branch office or place of business of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.cralaw field personnel are those whose time and performance is unsupervised by the employer who are engaged on task or contract basis, purely on commission basis, or are paid in a fixed amount for performing work irrespective of the time consumed in the performance. Employer is one who employs the services of others; one for whom employees work and who pay their wages or salaries. It is any person, natural os juridical, who carries on any trade or business or any activity of any kind, and uses the services of another person who is under his order as regards the employment. Employee is one who is engaged in the services of another; who performs services for another; who works for salary and wages. His work is subject to control of the employer not only as to the result but the manner and means of doing it. It is any person who performs services for an employer in which either or both mental and physical effortd are used and who receives compensation for such services, where there is employer-employee relationship Elements or tests of "employment relationship" a) the selection and engagement of the employee, b) payment of wages, c) power of dismissal, d) the employer's power to control the employee with respect to the means and methods by which the work is to be accomplished. ( "Brotherhood" Labor Unity Movement ofthe Philippines, et al vs. Zamora, G.R. No. 48645, Jan. 7, 1987)

Right of Control Test: where the person for whom the services are performedreserves the right to control not only the end to be achieved but also the means to be used in reaching such end. "Independent contractors" can employ others to work and accomplish contemplated result w/o consent of contractee, while "employee" cannot substitute another in his place w/o consent of his employer. A contractor is self-employed or an employer to others. And if a contractor (an individual or a firm) hires other workers, the latter are his employees and not those of the contracted. Ex. Security guards are employees of the security agency (contractor), not where the guards are assigned, ie, the place of work (contractee). This is called job contrfacting. Note that the contractor must himself be a bonafide employer-business man or business firm. Two-tiers Approach; the Economic Dependence Test 1. The putative employer's power to control the employee with respect to the means and methods by which the work is to be accomplished, 2. The underlying economic realities of the activity or relationship, such as: a) the extent to which the services performed are an integral part of the employer's business, b) the extent of the worker's investment in equipment and facilities, c) the nature and degree of control exercised by the employer, d) the worker' opportunity for profit or loss, e) the amount of initiative, skill, judgment, or foresight required for the success of the claimed independent enterprise, f) the permanence and duration of the relationship between the worker and the employer, and g) the degree of dendency of the worker upon the employerfor his continued employment in that line of business (Angelina Francisco vs. NLRC, Kasei Corp. etc, G.R. No. 170087, Aug. 31, 2006) Samples 1. There is E'r-E'ee relationship in a business of manufacturing baskets, since there is control as to employer's requirement of size & quality of work. The control test calls merely for the existence of the right to control the manner of doing the work, not the actual exercise of the right. 2. 'Pakiaw' workers are are considered employees as long as the employer exrcises control over the means by which such workers are to perform their work. Boundary or pakiaw are merely methods of computing their pay. Mode of compensaton is not a test of employment status. 3. Workers in a dress shop, like seamster or plantsadora even if paid by piece, w/ time of work, are employees. 4. In a joint fishing venture between boat owner and crew members, there is no e're'ee relationship if there is no control as to how they work or when or where they want to

ARTICLE 83. Normal hours of work. - The normal hours of work of any employee shall not exceed eight (8) hours a day. chanroblespublishingcompany PRESIDENTIAL DECREE No. 442 THE LABOR CODE OF THE PHILIPPINES 37 Health personnel in cities and municipalities with a population of at least one million (1,000,000) or in hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. For purposes of this Article, health personnel shall include resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. Why 8 hours? - to safeguard health and welfare of worker, and to give chance to others to work in other shift

ARTICLE 84. Hours worked. - Hours worked shall include (a) all time during which an employee is required to be on duty or to be at a prescribed workplace; and (b) all time during which an employee is suffered or permitted to work. chanroblespublishingcompany Rest periods of short duration during working hours shall be counted as hours worked.

IRR SECTION 3. Hours worked. The following shall be considered as compensable hours worked: (a) All time during which an employee is required to be on duty or to be at the employer's premises or to be at a prescribed work place; and (b) All time during which an employee is suffered or permitted to work.cralaw SECTION 4. Principles in determining hours worked. The following general principles shall govern in determining whether the time spent by an employee is considered hours worked for purposes of this Rule: (a) All hours are hours worked which the employee is required to give his employer, regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion.cralaw (b) An employee need not leave the premises of the work place in order that his rest period shall not be counted, it being enough that he stops working, may rest completely and may leave his work place, to go elsewhere, whether within or outside the premises of his work place.cralaw (c) If the work performed was necessary, or it benefited the employer, or the employee could not abandon his work at the end of his normal working hours because he had no replacement, all time spent for such work shall be considered as

hours worked, if the work was with the knowledge of his employer or immediate supervisor.cralaw (d) The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either if the imminence of the resumption of work requires the employee's presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employee's own interest.cralaw SECTION 5. Waiting time. (a) Waiting time spent by an employee shall be considered as working time if waiting is an integral part of his work or the employee is required or engaged by the employer to wait.cralaw -ex. Driver (b) An employee who is required to remain on call in the employer's premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose shall be considered as working while on call. An employee who is not required to leave word at his home or with company officials where he may be reached is not working while on call.cralaw

Das könnte Ihnen auch gefallen