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APPRENTICE
4.02 APPRENTICE
A. DEFINED 4(j) of RA. 7796
Apprenticeship training within employment with
compulsory related theoretical instructions involving a
contract between an apprentice and an employer on an
approved apprenticeable occupation.
B. APPRENTICEABLE OCCUPATION 4(m) RA
7796
Apprenticeable Occupation is an occupation officially
endorsed by a tripartite body and approved for
apprenticeship by the Authority
C. QUALIFICATION Sec.12, RA 7610, as amended
by RA 7658
Sec. 12. Employment of Children. Children below
fifteen (15) years of age may be employed except:
(1) When a child works directly under the sole
responsibility of his parents or legal guardian and where
only members of the employer's family are employed:
Provided, however, That his employment neither
endangers his life, safety and health and morals, nor
impairs his normal development: Provided, further, That
the parent or legal guardian shall provide the said minor
child with the prescribed primary and/or secondary
education; or
(2) When a child's employment or participation in public
& entertainment or information through cinema, theater,
radio or television is essential: Provided, The employment
contract concluded by the child's parent or guardian, with
the express agreement of the child concerned, if possible,
and the approval of the Department of Labor and
Employment: Provided, That the following requirements
in all instances are strictly complied with:
(a) The employer shall ensure the protection,
health, safety and morals of the child;
(b) the employer shall institute measures to
prevent the child's exploitation or discrimination
taking into account the system and level of
remuneration, and the duration and
arrangement of working time; and;
(c) The employer shall formulate and implement,
subject to the approval and supervision of
competent authorities, a continuing program for
training and skill acquisition of the child.
In the above exceptional cases where any such child may
be employed, the employer shall first secure, before
engaging such child, a work permit from the Department
of Labor and Employment which shall ensure observance
of the above requirement.
The Department of Labor Employment shall promulgate
rules and regulations necessary for the effective
implementation of this Sec.
D. ALLOWED EMPLOYMENT Requirement Program Approval
Nitto Enterprises vs. NLRC
318 Phil 780
Kapunan
FACTS:
Bernardo and 37 others were deaf mutes who were hired
for various periods by Far East Bank and Trust Co as
Money Sorters and Counters
They were dismissed after a few years of renewal of
contracts
Bank says that their employment was only an
accommodation in response to the requests of government
officials and civic-minded citizens
LA said they could not be deemed regular; NLRC affirmed
Art. 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.
RATIO:
LC 280 regular employee if performs activities that are
necessary or desirable
Task of counting and sorting bills is necessary to the
business of the bank
Renewal also indicates that the contracts of the
handicapped workers leads to the conclusion that their
tasks were beneficial and necessary to the bank
The fact that the employees were qualified disabled
persons necessarily removes the employment contracts
from the ambit of LC 80
They should be treated and granted the same rights like
any other regular employees
b.
c.
d.
e.
less than ten (10%) per cent of such premium rate for each
hour of work performed.
Distinguishing Characteristic of
Managerial Employees (RA
2377 Explanatory Note): He is
not subject to the rigid
observance of regular office
hours. The true worth of his
service does not depend so
much on the time he spends in
office but more on the results he
accomplishes. In fact, he is free
to go out of office anytime.
o Reason behind exemption: The
philosophy behind the exemption of
managerial employees from the 8-Hour
Labor Law is that such workers are not
usually employed for every hour of work
but their compensation is determined
considering their special training,
experience or knowledge which requires
the exercise of discretion and
independent judgment, or perform work
related to management policies or
general business operations along
specialized or technical lines. For these
workers it is not feasible to provide a
fixed hourly rate of pay or maximum
hours of labor.
The intervenors are holding position of
responsibility. One of them is the Secretary of the
Board of Directors. Another is the private
secretary of the general manager. Another is a
public relations officer, and many other chiefs of
divisions or sections and others are supervisors
and overseers. Respondent court, however, after
examining carefully their respective functions,
duties and responsibilities found that their
primary duties do not bear any direct relation with
the management of the NAWASA, nor do they
participate in the formulation of its policies nor in
the hiring and firing of its employees. The chiefs of
divisions and sections are given ready policies to
execute and standard practices to observe for their
execution. Hence, it concludes, they have little
freedom of action, as their main function is merely
to carry out the company's orders, plans and
policies.
As a matter of fact, the intervenors are required to
observe working hours and record their time work
and are not free to come and go to their offices,
nor move about at their own discretion.
4. I: WON respondent Court of Industrial
Relations has jurisdiction to adjudicate
overtime pay considering that this issue
was not among the demands of
respondent union in the principal case
Issue:
1) WON Nestle's sales personnel are entitled to holiday pay.
2) WON the divisor should be changed from 251 to 261
days.
3) WON the use of 251 as divisor resulted in overpayment.
4) Beginning when HP should be computed.
Held: 1) No. 2)Yes. 3) No. 4)
Rationale:
1) Under Art. 82, field personnel are not entitled to holiday
pay. Field personnel = "non-agritultural 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." Sales
personnel start field work at 8:00 a.m. after reporting to
the office and report back at 4:00/4:30 p.m. if they are
Makati-based. The law requires that actual hours of work in
the field be reasonably ascertained. The company has no
way of determining WON these sales personnel
really spend the hours in between in actual field
work. This requirement for the salesmen is but an exercise
of purely management prerogative of providing
administrative control. Rule IV, Book III of the
Implementing Rules which provides that the rule shall
apply to all employees except field personnel and other
employees whose time and performance is unsupervised
by the employer. The clause "whose time and performance
is unsupervised by the employer" merely
interpreted/expounded the clause "whose actual hours of
work in the field cannot be determined with reasonable
certainty." The former clause is still within the scope of Art.
82 which defines field personnel. So, WON an
employee's actual working hours in the field can be
determined with reasonable certainty WON the
employee's time and performance is constantly
supervised by the employer.
The criteria for granting incentive bonus (sales/collection)
indicate that these sales personnel are given incentive
bonuses precisely because of the difficulty in measuring
their actual hours of field work. They are evaluated by the
result of their work and not by the actual hours of work. A
salesman mostly works individually. There are no
restrictions in the time he works. He earns as much or as
little, within the range of his ability, as his ambition
dictates. In lieu of overtime, he receives commissions. He
works away from his employer's place of business, is not
subject to the personal supervision of his employer, and his
employer has no way of knowing the number of hours he
works per day.
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2.
HELD: No.
1. The contested provision is :
ART. 82.Coverage. The provisions of this title [Working
Conditions and Rest Periods] shall apply to employees in all
establishments and undertakings whether for profit or not,
but not to government 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.
xxx
xxx
xxx
"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
Mercidar claims that being a fisherman, the work of Fermin
is performed away from business, and his actual number of
hours worked cannot be verified, qualifying him as a field
personnel.
The court cited the case of Nestle personnel where it held
that in the case of salesmen, while they have to report at
appointed hours in the office, it cannot be ascertained
whether they actually worked or not ouside the office. In
the case at bar, since they are fishermen they cannot leave
the fishing vessel in the meantime, rendering them under
full effective control and supervision of the company.
2.
35c for the second shift, 55c for the third shift
WAITING TIME
Arica v NLRC
February 28, 1989
Paras
Facts:
Issues:
1. WON 30-minute assembly time is compensable under
the Labor Code
2. WON NLRC committed grave abuse of discretion
Held: No (for both).
Ratio:
Moreover, as a rule, the findings of facts of quasijudicial agencies which have acquired expertise
because their jurisdiction is confined to specific
matters are accorded not only respect but at times even
finality if such findings are supported by substantial
evidence
Dispositive: PREMISES CONSIDERED, the petition is
DISMISSED for lack of merit and the decision of the
National Labor Relations Commission is AFFIRMED.
Sarmiento (Dissenting): GRANT THE PETITION. Res
judicata is not a bar. ALU v STANFILCO is not a controlling
precedent. It is evident that the Ople decision was
predicated on the absence of any insinuation of
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23
Regular pay:
1) Hourly rate = X
2) OT Hourly Rate 12 MN = (X + 50% X)
3) NSD 6 PM - 12 MN = (X + 25% X)
4) OT Hourly Rate NSD 6 PM - 12 MN
= (X + 25% X) + 50% (X + 25% X)
5) NSD 12 MN - 6 AM = (X + 50% X)
6) OT Hourly Rate NSD 12 MN - 6 AM
= (X + 50% X) + 50% (X + 50% X)
Sunday as day off
1. Hourly Rate = (X + 100% X)
2. OT HR = (X + 100% X) + 50% (X + 100% X)
3. NSD 6 PM - 12 MN
= [ (X + 100% X) + 25% (X+ 100% X) ]
4. OT Hourly Rate NSD 6 PM - 12 MN
= [ (X + 100% X) + 25% (X + 100% X) ] +
50% [ (X+ 100% X) + 25% (X + 100% X) ]
5. NSD 12 MN - 6 AM
= [ (X + 100% X) + 50% (X + 100% X) ]
6. OT Hourly Rate NSD 12 MN - 6 AM
= [ (X + 100% X) + 50% (X + 100% X) ] +
50% [ (X + 100% X) + 50% (X + 100% X) ]
Caltex denied the accusations of the Union. It averred that
Saturday was never designated as a day of rest, much less a
"day-off". It maintained that the 1985 CBA provided only 1
day of rest and that is Sunday.
SC said that Article III provide that only "work on an
employee's one day of rest "shall be paid on the basis of
"day of rest rates". The relevant point here is that petitioner
Union had never suggested that more than 1 day of rest had
been agreed upon, and certainly Caltex had never treated
Article III or any other portion of the CBAs as
providing two (2) days of rest.
Doctrine: Overtime work consists of hours worked on a
given day in excess of the applicable work period, which
here is eight (8) hours. It is not enough that the hours
worked fall on disagreeable or inconvenient hours. In order
that work may be considered as overtime work, the hours
worked must be in excess of and in addition to the eight (8)
hours worked during the prescribed daily work period, or
the forty (40) hours worked during the regular work week
Monday thru Friday.
In the present case, under the 1985 CBA, hours worked on a
Saturday do not, by that fact alone, necessarily constitute
overtime work compensable at premium rates of pay,
contrary to petitioner's assertion. These are normal or
regular work hours, compensable at regular rates of pay, as
provided in the 1985 CBA; under that CBA, Saturday
is not a rest day or a "day off". It is only when an
employee has been required on a Saturday to
render work in excess of the forty (40) hours which
constitute the regular work week that such
employee may be considered as performing
overtime work on that Saturday. We consider that the
statutory prohibition against offsetting undertime one day
with overtime another day has no application in the case at
bar.
PNB vs. PNB Employees Association (PEMA)
115 SCRA 507 / July 30, 1982
EN BANC Barredo
longer stay in his place of work that justify and is the real
reason for the extra compensation that he called
overtime pay.
Overtime work is actually the lengthening of hours
developed to the interests of the employer and the
requirements of his enterprise. It follows that the wage or
salary to be received must likewise be increased, and more
than that, a special additional amount must be added to
serve either as encouragement or inducement or to make
up fop the things he loses which We (the SC) have already
referred to. And on this score, it must always be borne in
mind that wage is indisputably intended as payment for
work done or services rendered. Thus, in the definition of
wage for purposes of the Minimum Wage Law,
Republic Act No. 602 (old?), it is stated:
'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, commission basis or other method of
calculating the same, which is payable by an employer to
an employee under a written or unwritten contract of
employment for work done or to be done or for services
rendered or to be rendered and includes the fair and
reasonable value as determined by the Secretary of Labor,
of board, lodging or other facilities customarily furnished
by the employer to the employee. 'Fair and reasonable
value' shall not include a profit to the employer which
reduces the wage received by the employee below the
minimum wage applicable to the employee under this Act,
nor shall any transaction between an employer or any
person affiliated with the employer and the employee of the
employer include any profit to the employer or affiliated
person which reduces the employee's wage below the wage
applicable to the employee under this Act. (same definition
in Labor Code Title II Chap 1 Sec 97)
Or simply put,
wage under said law, in whatever means or form it is
given to the worker, is "for work done or to be done or for
services rendered or to be rendered" and logically
"includes (only) the fair and reasonable value as
determined by the Secretary of Labor, of board, lodging or
other facilities customarily furnished by the employer to
the employee".
And wage is NOT a supplement, which is defined as:
extra remuneration or benefits received by wage earners
from their employers and include but are not restricted to
pay for vacation and holidays not worked; paid sick leave or
maternity leave; overtime rate in excess of what is required
by law; pension, retirement, and death benefits; profitsharing, family allowances; Christmas, war risk and costof-living bonuses; or other bonuses other than those paid
as a reward for extra output or time spent on the job.
NAWASA vs NAWASA Consolidated Unions (Aug
31, 1964)
In this case, there were some employees of NAWASA who
were working 7 days/week and paid a 25% Sunday
differential. Then RA 1880 was enacted (1957), which
provided that work hours for government employees are
only 40hrs/week, PROVIDED that the monthly salaries
they are receiving shall not be diminished by this reduction
in work hours. Now, NAWASA filed a case and said that
this law meant that the said workers basic daily wage
LAGATIC V. NLRC
January 28, 1998 J. Romero
4.
5.
6.
Offset for repatriation cost is untenable
Part II of Memorandum Circular No. 41, to wit:
SECTION H. REPATRIATION
x xxx
2. When the seaman is discharged for disciplinary
reasons, the employer shall have the right to
recover the costs of maintenance and repatriation
from the seaman's balance of wages and other
earnings.
x xxx
The employer shall have the right to recover the
cost of repatriation from the seaman's wages and
other earnings only if the concerned seaman is
validly discharged for disciplinary measures. In
the present case, since petitioners failed to prove
that private respondent was validly terminated
from employment on the ground of desertion, it
only follows that they do not have the right to
AND
hours plus 30% thereof. The regular holiday rest day rate of
an employee shall consist of 200% of his regular daily wage
rate plus 30% thereof.
SECTION 6. Absences. (a) All covered employees shall be
entitled to the benefit provided herein when they are on
leave of absence with pay. Employees who are on leave of
absence without pay on the day immediately preceding a
regular holiday may not be paid the required holiday pay if
he has not worked on such regular holiday.
(b) Employees shall grant the same percentage of the
holiday pay as the benefit granted by competent authority
in the form of employee's compensation or social security
payment, whichever is higher, if they are not reporting for
work while on such benefits.
(c) Where the day immediately preceding the holiday is a
non-working day in the establishment or the scheduled rest
day of the employee, he shall not be deemed to be on leave
of absence on that day, in which case he shall be entitled to
the holiday pay if he worked on the day immediately
preceding the non-working day or rest day.
SECTION 7. Temporary or periodic shutdown and
temporary cessation of work. (a) In cases of temporary or
periodic shutdown and temporary cessation of work of an
establishment, as when a yearly inventory or when the
repair or cleaning of machineries and equipment is
undertaken, the regular holidays falling within the period
shall be compensated in accordance with this Rule.
(b) The regular holiday during the cessation of operation of
an enterprise due to business reverses as authorized by the
Secretary of Labor and Employment may not be paid by the
employer.
SECTION 8. Holiday pay of certain employees. (a)
Private school teachers, including faculty members of
colleges and universities, may not be paid for the regular
holidays during semestral vacations. They shall, however,
be paid for the regular holidays during Christmas vacation;
(b) Where a covered employee, is paid by results or output,
such as payment on piece work, his holiday pay shall not be
less than his average daily earnings for the last seven (7)
actual working days preceding the regular holiday;
Provided, However, that in no case shall the holiday pay be
less than the applicable statutory minimum wage rate.
(c) Seasonal workers may not be paid the required holiday
pay during off-season when they are not at work.
(d) Workers who have no regular working days shall be
entitled to the benefits provided in this Rule.
SECTION 9. Regular holiday falling on rest days or
Sundays. (a) A regular holiday falling on the employee's
rest day shall be compensated accordingly.
(b) Where a regular holiday falls on a Sunday, the following
day shall be considered a special holiday for purposes of the
Labor Code, unless said day is also a regular holiday.
SECTION 10. Successive regular holidays. Where there
are two (2) successive regular holidays, like Holy Thursday
and Good Friday, an employee may not be paid for both
holidays if he absents himself from work on the day
immediately preceding the first holiday, unless he works on
the first holiday, in which case he is entitled to his holiday
pay on the second holiday.
o
o
Issues:
1. WON Muslim holiday pay should be granted to
non-Musim employees
2. WON SMC was accorded due process of law
3. WON compliance order was issued without/in
excess of jurisdiction
Held & Ratio:
1. Yes.
2.
3.
Doctrine:
Holiday pay is a legislated benefit enacted as part of the
Constitutional imperative that the State shall afford
protection to labor. Its purpose is not merely "to prevent
diminution of the monthly income of the workers on
account of work interruptions. In other words, although the
worker is forced to take a rest, he earns what he should
earn, that is, his holiday pay." It is also intended to enable
the worker to participate in the national celebrations held
during the days identified as with great historical and
cultural significance.
Independence Day (June 12), Araw ng Kagitingan (April
9), National Heroes Day (last Sunday of August), Bonifacio
Day (November 30) and Rizal Day (December 30) were
declared national holidays to afford Filipinos with a
recurring opportunity to commemorate the heroism of the
Filipino people, promote national identity, and deepen the
spirit of patriotism. Labor Day (May 1) is a day traditionally
reserved to celebrate the contributions of the working class
to the development of the nation, while the religious
holidays designated in Executive Order No. 203 allow the
worker to celebrate his faith with his family.
Art. 94 of the Labor Code, as amended, affords a worker the
enjoyment of ten paid regular holidays. The provision is
mandatory, regardless of whether an employee is paid on a
monthly or daily basis.Unlike a bonus, which is a
management prerogative, holiday pay is a statutory benefit
demandable under the law. Since a worker is entitled to the
enjoyment of ten paid regular holidays, the fact that two
holidays fall on the same date should not operate to reduce
to nine the ten holiday pay benefits a worker is entitled to
receive.
It is elementary, under the rules of statutory construction,
that when the language of the law is clear and unequivocal,
the law must be taken to mean exactly what it says. In the
case at bar, there is nothing in the law which provides or
indicates that the entitlement to ten days of holiday pay
37
39
ISSUE:
WON a monthly-paid employee, receiving a fixed monthly
compensation, is entitled to an additional pay aside from
his usual holiday pay, whenever a regular holiday falls on a
Sunday
HELD:
Issues
1. WON CA decision is in accord with law and
jurisprudence
o WON an employer-employee relationship
exists between the private respondents and
McLeod for purposes of determining
employer liability to McLeod
o WON private respondents may avoid
their financial obligations to the petitioner by
invoking the veil of corporate fiction
2. WON McLeod is entitled to the relief he seeks
against private respondents
Held and Ratio
1. Yes
No
46
No
o The assertion that "for purposes of determining
employer liability, all private respondents are
one and the same employer" because: (1) they
have the same address; (2) they are all
engaged in the same business; and (3) they
have interlocking directors and officers, is
untenable because a corporation is an
artificial being invested by law with a
personality separate and distinct from that of
its stockholders and from that of other
corporations to which it may be connected.
But while a corporation may exist for any
lawful purpose, the law will regard it as an
association of persons or, in case of two
corporations, merge them into one, when its
corporate legal entity is used as a cloak for
fraud or illegality. This is the doctrine of
piercing the veil of corporate fiction. To
disregard the separate juridical personality of
a corporation, the wrongdoing must be
established clearly and convincingly. It cannot
be presumed. Here, the court did not fine any
of the evils sought to be prevented by the
doctrine of piercing the corporate veil.
o Personal liability of corporate directors, trustees
or officers attaches only when (1) they assent
to a patently unlawful act of the corporation,
or when they are guilty of bad faith or gross
negligence; (2) they consent to the issuance of
watered down stocks or when, having
knowledge of such issuance, do not forthwith
file with the corporate secretary their written
objection; (3) they agree to hold themselves
personally and solidarily liable with the
corporation; or (4) they are made by specific
provision of law personally answerable for
their corporate action. McLeod failed to prove
any of the foregoing exceptions in the present
case, hence McLeod cannot hold Patricio
solidarily liable with PMI. Besides, there is
No
McLeod is a managerial employee who is excluded
from the coverage of entitlement or payment of
vacation leave and sick leave as well as to holiday
pay as mentioned in Title I, Book Three of the
Labor Code.
48