Sie sind auf Seite 1von 21

Labor Law Review Study Guide A.Y.

2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

 Interpretation of agreements and


writings (2011 E.G.I. Construction)
I. APPLICABLE LAWS
o Cf: Protection of Labor Clause
 Omnibus Rules (as amended by D.O. 40-03, 40-B-
03, 40-C-05, 40-D-05, 40-F-08, 40-G-10, and 40-H-  Rule on Construction: In case of doubt
13) o In case of doubt, all labor legislation and all
labor contracts shall be construed in favor
 Tripartism (Art. 275, as amended by R.A. 10395);
of the safety and decent living for the
2013 law creating the National Tripartite Industrial
laborer (Article 1702, NCC)
Peace Council as well as a regional council.
 Labor Code vs. IRR; Conflict
 PD 442, as amended (November 1, 1974, effectivity
date; May 1, 1974, signed into law) o Perez vs. NLRC 2009 case

 Labor, concept  WON a mandatory conference is


required (which was mentioned in
 Fields an d Systems of Labor
the IRR but not in the Labor Code).
 Enactment of Labor Laws o In case of conflict, the Labor Code prevails
o Bases: protection to labor, social justice, over the administrative regulations
police power (e.g. Art. 263,g), doctrine of implementing it
incorporation o The authority to promulgate implementing
o Limitations: observance of due process; rules proceeds from the law itself. It cannot
equal protection (e.g. Serrano vs. NLRC amend the law either by abridging or
case); prohibition against involuntary expanding the scope.
servitude  Doctrine; Principle of Law; IRR & Labor Advisory
--------------
o It merely interprets a pre-existing law and
Day 2: the administrative interpretation is at best
advisory.

o It is the courts that finally determine what


 Relations Between Capital and Labor: the law means (2008 Letran Calamba
Faculty and Employees Association)
o Not merely contractual; impressed with
public interest (Article 1700, NCC)  No force and effect of law; Executive Issuances
o Labor is neither chattel nor a commodity, o 2004 Sonza vs. ABS-CBN case
but human and must be dealt with from the
standpoint of human interest (2004 Asufrin) o Policy Instruction No. 40 (which classifies
broadcast workers into program and non-
o Principle of Non-Oppression: can be found program employees) is a mere executive
in the Civil Code issuance. It does not have the force and
effect of law.
 Law is not intended to oppress
capital when there is basis to o The classification of workers made under
terminate workers the said Policy is not binding on the Court
especially when such classification has no With Love and Awesomeness
 Rule of Interpretation and Implementation
basis in fact or in law.
o Article 4 of the LC
 Article 8, Civil Code; Judicial Decisions
 In case of doubt, construed in
o 2012 International Management Service
favor of the worker.
case
o Extends to:
o It recognizes judicial decisions applying or
 Evidence presented by the interpreting statutes as part of the legal
employer and the employee (2010 system of the country. However, such level
Penaflor) or of recognition does not extend to
administrative decisions, e.g. NLRC
decisions
1
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

o NLRC decisions cannot form part of the law  Yes, it is a property right.
of the land as it is not part of the judiciary; Employees, then, cannot be
no stare decisis in this case. It could terminated without observing due
constitute res judicata once its final and process.
executory (which is binding only as to the
parties) but not stare decisis.  Protection to Labor; Doctrine

 Probative value of DO 18-02 on Contracting o 2009 Serrano, citing 2004 Agabon case
Arrangement; Principle o It is not self-actuating; it is not judicially
o 2013 Vigilla, et.al. case enforceable. ( it needs a law; the protection
to labor clause provides no enforceable
 Probative value of a department relief by itself)
order.
o It cannot on its own be a source of a
o DO 18-02 (which is now, DO 18-A) positive enforceable right. It cannot be
interprets Articles 106 of the Labor Code. treated as a principal source of direct
These legislative rules and regulations enforceable rights.
designed to implement a primary legislation
have force and effect of law.  Social Justice; Doctrine

o A rule is binding on the courts as long as o 2008 Bureau of Fisheries and Aquatic
the procedure fixed for its promulgation is Resources Employees Union
followed and its scope is within the o Mere statement of principles and policies
statutory authority granted by the and not self-executing; guidelines for
legislature. legislation only.
 DO 10 on Contracting Arrangement; Probative Value; o e.g. Retirement Benefit law as an ENABLING
Principle LAW of the social justice principle

o 2013 Bpi Employees Union-Davao City o Update: another example is the Expanded
Senior Citizen's Act ( encourages employers
 It is a guide to determine what
to employ senior citizens in view of tax
functions may be contracted out,
exemption, subject to certain conditions)
subject to the rules and established
jurisprudence on legitimate
contracting job contracting and
Determining Employer-Employee Relationship
prohibited labor only contracting.

 The existing rules may be


 Four-Fold Test
amended or supplemented a. Selection and engagement of the employee
as long as sit is within the
authority given and not in b. Payment of wages
contravention of the law. c. Power to dismiss

d. Power to control - most important element


II. BASIC PRINCIPLES

 Nothing new here; SEE NOTES ABOVE  Two-tiered test; determining employer-employee With Love and Awesomeness
relationship
 Constitutional Principles
a. Power of control
o Due process clause - opportunity to be
heard. (this is unlike the concept of due b. Underlying economic realities of the activity
process in criminal law which is the RIGHT or relationship ("economic facts of the
to be heard) relation" test)

o Employment is a property right? o Applies when there is no written contract or


there is complexity of relationship based on
 2010 Manila Electric Company, en various positions held (2006 Francisco vs.
banc NLRC case)

2
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

 Importance of determining the existence of er-ee o Pakyaw workers are considered employees
relationship: knowing what law to apply (in contrast for as long as their employers exercise
with principal-agent, being a corporate officer, control over them (2013 Gapayao case)
partner, independent contractor, etc.)

 Mischief Remedy Test Jurisprudence:


o "if the worker suffers from the evils  Employee? Or Independent Contractor?
(mischief) which the Act seeks to correct
and if the remedies of the Act will prevent o The caddy earned no fixed income but
or cure the harmful effects of the evil in the depends on number of players engaging his
situation involving the worker, then the service.
worker is an employee and is entitled to
o He is paid by the golf player and not by the
protection."
golf club (1994 Manila Golf and Country
o This is an old test in determining er-ee Club case)
relationship.
o The determination of the existence of er-ee:
determines the jurisdiction and cause of
action
 Test; Primary and Controlling
 Medical retainers hired under Article 157 (2005 Phil.
o Control over the performance of the task of
Global Communication case) involving emergency
one providing the service.
dental and medical services (2009 Escasinas)
o Case: Tongko vs. ManuLife case (2011) -
o Nurses and doctors hired under medical
the en banc ruling on the MR
retainer are not necessarily employees of
the hiring party. The 4-fold test must be
applied. Such retainer may be a good
 Employment vs. Independent Contractorship indicator that you are an independent
contractor.
o There are only 2 recognized systems in the
Philippines: wage system and free  Medical consultants in hospitals (2002 Ramos case)
artisanship
o These specialists are not employees of the
o Employee; chief characteristics hospital.
There are two primary characteristics of an employee: o However, the hospital can still be held liable
for tort under the "doctrine of apparent
 Economic dependence
authority" (2006 Nogales case)
 Subordination
 No Employment relationship; IRR
o Individual Independent Contractor; Chief
Characteristics
o Working scholars in schools, college or
university (Section 14, Rule X, IRR) : as
long as they are given the real opportunity
to finish their chosen courses, there exists
 Doctrine; Principle of Law no er-ee relationship
o An independent contractor is paid for the
 When Employees and when not?
result of his labor, unlike an employee who With Love and Awesomeness
is paid for the labor he performs (1988 Dr. o Resident physicians if there is a training
Sara case) agreement with the hospital and the
training program is duly accredited by the
 Jurisprudence; Per trip basis appropriate government agency (Section
o One may be paid on the basis of results or 15, Rule X, IRR). IN other words, those
time expended on the work and may or may undergoing specialization training as
not acquire an employment status, distinguished from non-training general
depending of the existence of the four-fold practitioners (2008 Calamba Medical
test or not (2005 Chavez case) Center)

 Pakyaw Workers; Status  No employment relationship; Special Laws

3
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

o Real Estate Broker; Appraiser or Consultant o The selection and employment of the jockey
performing real estate services (section 33, is made by the race horse is made by the
RA 9646 otherwise known as Real Estate race horse owner whose horse the jockey
Service Act of the Philippines) will ride, not by the race club. Upon the
other hand, the jockey decides for himself
 The law expressly provides that the horse he is to mount (1969 SSS/Manila
they are not employees of the real Jockey Club case)
estate company.
 Jockey is not an employee of the
o Student trainees (dual training system act
race club
of 1994): Section 8, R.A. 7686
 The SSS has the jurisdiction to
 Not an employee; just a trainee
take cognizance of the existence of
(DO NOT EXTEND TO THEM LABOR
er-ee relationship for the purpose
STANDARDS BECAUSE THEY ARE
of SSS coverage.
NOT EMPLOYEES as expressly
provided by the law)  PBA Basketball Referee

 Jurisprudence; Insurance Agents o He officiates a basketball game. Once in the


playing court, he exercises his own
o Independent self-employed insurance agent
independent judgment, based on the rules
(2011 Tongko, en banc)
of the game, as to when and how a call or
 Labor "control" vs. Agency "control" decision is to be made.

o The labor concept of control has to be o Independent contractor, not an employee


distinguished with the control in a principal (Bernarte case)
agent relationship in the insurance industry.
 Sabong
At the very least, 3 sets of laws have to be
considered - the Insurance Code, Labor o A masiador (bet-taker) and sentenciador
Code and Civil Code (2011 Tongko, en (referee) are akin to independent
banc) contractors.

 Not an employee; an insurance o In the conduct of their work, they rely on


agent is an independent, self- their expertise that is characteristic of the
employed agent. cockfight gambling. They can interpret
message conveyed by mere gestures. Their
o The general law on agency allows the compensation is based on the arriba. (2011
principal an element of control over the Semblante).
agent in a manner consistent with agency
relationship. However, these control  Pianist
measures cannot be read as indicative of
labor law control (ibid).
o The company has fixed the time of
performance from 7 to 10, 3 to 6 times a
o Special Note for the Exam: How do you week
distinguish labor control from agency
control?
o No liberty to choose the place of
performance
 Doctrine; Principle of Law
o Required to perform only Tagalog songs or
music or to wear barong Tagalog
With Love and Awesomeness
o Article 280 is not the yardstick for
determining the existence of an
o Subjected to rules on employee's
employment relationship.
representation check and chits (2012
o It merely distinguishes between regular and Legend Hotel [Manila])
casual employees. It does not apply where
 He is an employee.
the existence of an employment relationship
is in dispute (2011 Atok Big Wedge
Company)
Rights of Worker; In General
 Jurisprudence: Employee or Independent Contractor?
 Constitutional rights in relation to labor standards

o Right to a living wage


4
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

o Humane working conditions an undertaking which is hazardous or


deleterious in nature.
o Just share in the fruits of production
 As long as not below 15.
 Implementing law: Productivity
incentive act  Examples: Work which exposes
children to physical, psychological
 Constitutional rights in relation to labor relations
or sexual abuse, e.g. lewd shows
o Self-organization (stripteasers, burlesque dancers),
bars (KTV, karaoke bars), massage
o Collective bargaining and negotiation clinics, gambling halls and places,
o Peaceful concerted activities including the etc. - these are nominated as the
right to strike worst forms of child labor. These
are deleterious and no person
o Security of tenure below 18 can be employed.
o Participate in policy and decision making  Work underground, underwater at
processes affecting their rights and benefits dangerous heights or at unguarded
as may be provided by law. heights of 2 meters and above or
in confined places, e.g. mining,
deep sea fishing/diving, painting
 Sources of Labor Laws buildings, window cleaning, etc.

 See: Department Regulation on


this matter

III. RIGHT TO HIRE (POWER TO HIRE)  Restrictions prior to hiring: Special laws

o Section 14, RA 7610, as amended by RA


7658
 Nature of Power: strictly speaking, it is not a right
but a prerogative; this is inherent in management  An employer is prohibited from
employing child models in all
 Restrictions prior to hiring; Labor Code commercials or advertisements,
o Art. 136: An employer is prohibited from promoting alcoholic beverages,
intoxicating drinks, tobacco and its
requiring as a condition of employment that
by-products, and violence.
a woman employee shall not get married.
o Section 32, Title 3, Chap. 1, RA 7277,
 The downside: this policy will
Magna Carta for Disabled Persons
encourage illicit or live-in
relationships  No entity shall discriminate against
o Art. 248 (b): An employer is prohibited from a qualified disabled person by
reason of disability in regard to job
requiring as a condition of employment that
application procedures, hiring, etc.
a person or an employee shall not join a
labor organization or shall withdraw from o RA 7877; Anti-Sexual Harassment Act of
one to which he belongs. 1995 With Love and Awesomeness
 This is the only Unfair Labor  An employer in a work-related or
Practice (ULP) which can be employment environment, is
committed even without er-ee prohibited from asking sexual favor
relationship yet. as a condition in the hiring or in
the employment, re-employment
 Subject to criminal and civil
or continued employment of an
liabilities.
individual.
 a.k.a. Yellow Dog Contract o Section 55, RA 8791: General Banking Laws
o Art. 139: An employer is prohibited from of 2000
employing any person below 18 years old in
5
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

 No bank shall employ casual or o Not valid if there is no evidence relating to


non-regular personnel on too the legitimate interest of the employer
lengthy probationary personnel in which might be protected in terms of time,
the conduct of its business space and types of activity proscribed.
involving deposits.
 Employer's qualifying "weight" standards for its flight
 Atty JMM's interpretation steward, that is prescribed under its cabin and
of "too lengthy": beyond 6 manual crew, considered a continuing qualification to
months which is the keep one's job, it involving flight safety issues. It
regular probationary applies prior to and after hiring (2008 Yrasuegui
period case)

o Section 35, RA 8504, Philippine Aids


Prevention and Control Act of 1998
---------------continue from here---------------------
 Discrimination in any form from
pre-employment to post-
employment, including hiring, etc., 11/25/2013
based on actual, perceived or
suspected HIV status of an
individual is prohibited.  Expanding the positions reserved for persons with
disabillity (RA No. 10524, amending Section 5, RA
o IRR, RA 10354 (Reproductive Health Act,
No. 7277, published on May 2, 2013)
still subjected to a TRO)
o An amendment to the magna carta for
 An employer is prohibited from disabled persons
suggesting, requiring, xxx any
applicant for employment xxx to o At least 1% of all positions in the
submit himself/herself to government agencies should be reserved
sterilization, use any modern xxxx
methods of family planning, or not
use such methods as a condition of
employment, continued
employment, promotions or the
IV. WAGE AND WAGE RATIONALIZATION ACT
provision of employment benefits.
Further, pregnancy or the number  Wages: Concept (1985 Gaa)
of children shall not be a ground
for non-hiring or termination of  Similar to Salary? (2006 Equitable Bank)
employment.
 See Article 97 (f) for the definition of wage

o For the purposes of the LC, there is no


 Jurisprudence; Marital Discrimination distinction between salary and wage

o No spouse employment policy (2006 Star


Paper) violates the employee's marital
Doctrine; Principle of Law
status IF it discriminates against all spouses
of present employees without regard to the  In labor law, the distinction between salary and wage
particular individual's qualification or work is merely semantics With Love and Awesomeness
performance.
 Both words refer to one and the same meaning, that
o Prohibiting employee from having personal
is, reward or recompense for services performed
or marital relationship with employee of a (2006 Equitable Bank Corp)
rival company (2004 Glaxo Wellcome Phils.)
is valid IF it applies to men and women
equally, and there exists compelling
Distinction; When Relevant
business necessity.
 Distinction applies under Article 1708 of the CC,
 Post retirement competitive employment ban (2006
which exempts the laborers' wage from execution or
Rivera)
attachment except for debts incurred for food,
shelter, clothing and medical attendance (1985 Gaa)
6
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

 Wages refer to compensation for manual labor,  How do we know the proper valuation of the
skilled or unskilled facilities?

 Salary denotes a higher grade of employment or a o 2013 Recent DOLE Regulation


superior grade of services and implies a position or
o Revised guidelines on the conduct of facility
office
evaluation

 Facility Evaluation, Concept


Wage; Concept
o Section 3
 Facilities; concept
o Refers to articles or services provided by
 Deductible, facilities; requisites (Mabeza) the employer for the benefit of the
employee or his/her family such as:
 Can you pay employee partly in kind?
 Meals
o GR: No.
 Housing for dwelling purposes
o Except: facilities
 Fuel including electricity, water,
 Requisites of a Facility: gas for the non-commercial
o Customarily given personal use of the employee

o Fair and reasonable value (fair valuation by  Transportation furnished to the


the SOLE but now, by the RTWPB under DO employee between his home and
126-13) work where the travel time does
not constitute compensable hours
o Accepted in writing by employees
worked.

 Xxx other articles and services


 Facilities vs. Supplement given to benefit him and his family

o Extra remuneration or special privileges or


benefits given to or received by the laborer
 Mechanics; Evaluation of Facility
over and above his earnings or wages (2011
SLL International Cable Specialist) o How initiated?

 This is not deductible from the  Filing of the application for the
wage conduct of facility evaluation with
the RTWPB having jurisdiction over
o In determining the classification, the basis
the workplace (Section 1, Rule 2)
is not the kind but the purpose (for whose
benefit is it given?) o Proper party?

 Union, worker; owner/manager

 Jurisprudence; Supplement, Not Facilities o Timeline:

o Free board and lodging 7 days a week  If new, before the introduction of
(2010 SIP Food House) the proposed facilities With Love and Awesomeness
o Food allowance, and allowance for lodging
 If existing: at any time
house, transportation, electricity, water and
snacks (2011 SLL International Cable o Result:
Specialist)
 The RD/DOLE shall issue a Facility
o Meals and lodging provided to employees in Evaluation Order
order to maintain their efficiency and health
while working at their respective project o Remedy:
sites, are supplements, and not facilities.
 Appeal to the NWPC (Rule V)
(ibid)
 Will not stay the order (Section 4,
Rule V)
7
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

 Will stay effective until its revoked 85,347/


xxx 12

o Publication:  We now have 12


regular holidays,
 employer must post in the bulletin thus, the divisor
board or in a conspicuous place has changed.
and submit certificate of posting to
the RTWPB (section 4, Rule IV)  Frequency of payment is not the
basis of the type of time-based
o Enforcement
worker that you are but the divisor
 Visitorial and Enforcement Power that is used in the computation of
and Simple Money Claims (Rule VI) the salary.

Job or task

Piece-rate
 Requisites for Deductibility of Facilities (from Ee's
wage) Commission

o Mabeza case Boundary

o Also see DO 126-13 Partly-fixed and partly-based on performance

 Article 97 also tells us the methods of determining  Daily-Paid Worker


compensation; enumeration here is not exclusive
o No work, no pay
 METHODS OF FIXING COMPENSATION
 Jurisprudence
o Time (daily paid and monthly paid)
o Use of 360 divisor for Monday to Friday
A. Time Spent; Concept work (2007 Leyte IV Electric Cooperative)

 Once the agreed period of work is o Use of 314 divisor for Monday to Saturday
completed, the compensation is work (2006 Arellano University Employees
earned and becomes due and Workers' Union; see also 1995
regardless of result. Wellington Investment)

 Two types; time-based earners: ------------------


divisors

 For monthly-paid  Monthly Paid Employee; Concept


employees: 365
o Reversion from 365 divisor (1999 Phil.
 For daily-paid employees Veterans Bank)

 393.50 (mon- o Covered by "no work, no pay" if absent


sun) without pay (2004 Odango)

 313 (mon-sat) (it


used to be 312 With Love and Awesomeness
but because
 Job or Task, Concept
there are now 12 o A flat or fixed sum is paid for each particular
regular holidays, job or task completed, without regard to the
the divisor number of hours actually spent in the
became 313) performance or completion.

 261 (mon-fri)  Piece Work, Concept

 For o A standard amount is fixed for every piece


example or unit of work produced that is more or
: 261 x less regularly replicated. Without regard to
327 = the time spent in producing the same.
8
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

 Workers Paid by Results (Section 2, Rule II, NWPC


Guidelines No. 1, S. 2012)
o There are two types: those whose time and
performance are supervised and those who o Performance-based Component:
are not supervised
 Business performance
 Significance: Article 82 of the Labor Code (revenue/ridership)

o Workers paid by results are not entitled to  Safety performance (safety record
the benefits under the same Title (Title I: i.e. incidence of road accident,
Working Conditions and Rest Periods); not traffic violations)
covered by certain labor standards
o Compliance of this department regulation is
 Jurisprudence: a prerequisite to a renewal with the LTFRB

o Tailors (1999 Lambo) - classified as a piece- Jurisprudence;per trip basis


rate worker o Paying on a per trip basis is merely a method of computing
o Sewer, ironer, tailor, and repairman compensation (2005 chavez)
(Villuga) - these are workers paid by result

 2013 Recent DOLE Regulations*


 Commission; Concept o Revised guidelines on the conduct of time
o A percentage or a fraction of the proceeds and motion study, published on April 20,
resulting from sales or similar transactions 2013 (DOLE D.O. No. 125-13 dated April 1,
effected is fixed 2013)

o Salesmen (1990 Songco) o Systematic determination of work method


and time standards using various
o Drivers and dispatchers (1996 San Miguel tools/technologies (Section 5, No. 15, Rule
Jeepney Services) I)

o Coverage:

 Boundary System; Concept  All workers of micro, small and


o A fixed amount is remitted by the driver to medium enterprises who are paid
the owner/operator and he gets to earn the by results, including pakyao,
amount in excess thereof piecework and other non-time work
pursuant to Article 101 of the
o If there are many passengers, the driver Labor Code (Section 4, Rule I)
benefits from it (2011 Caong, Jr.)
o The guidelines shall govern the conduct of
 Partly-Fixed-Partly-Performance Based time and motion study by the RTWPB
(Section 3, Rule I)
o Employment of drivers and conductors In
the public utility bus transport industry o How initiated: filing of application for the
under D.O. No. 118-12, S. 2012 dated conduct of time and motion study with the
January 13, 2012 RTWPB having jurisdiction over the
workplace (Section 1, Rule II)
o Salient points: With Love and Awesomeness
o Proper Party: union, worker,
 Amount mutually agreed owner/manager

 BUT not lower than the applicable o There is no need for this study when you
minimum wage (Basic + COLA) are paying your employees by time.

 Shall include wage-related benefits o Timeline:

 Maybe fixed based on time (e.g.  If new: before the rates are given
daily/monthly) per trip or per effect
kilometer/distance, within an 8
hour period; result or output based
 If existing: at any time

9
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

o Result: The RD/DOLE as RTWPB  Promote collective bargaining as


Chairperson shall issue a piece rate and/or primary mode of settling wages
production standard order (primary mode of settling wage
disputes)
o Xxx (order)

o Remedy: appeal to the NWPC

o Effectivity: until revoked or suspended or  Employer's right to reasonable returns on investment


revised or reviewed (Rule III) and to expansion and growth (2004 Duncan
Association of Detailman-PTGWO)
o Publication: employer must post in the
bulletin board or in a conspicuous place,
and submit certificate of posting to the
 Wage Distortion; Concept
RTWPB (Rule III)
o 4 requisites (1999 Prubankers Association)
o Enforcement: visitorial and enforcement
power and simple money claims (Rule IV) o How to Resolve (unorganized and organized
establishment)

 Doctrines; Principles of Law


 Methods of Determining Wages
o Fair day's wage for a fair day's labor, or no
work, no pay (1997 Caltex Refinery o Floor wage method; and
Employees Association; 2004 Odango)
 This usually causes wage distortion
o Equal pay for equal work (2000
International School Alliance of Educators o Salary-ceiling method (1991 Employers
vs. Quisumbing) Confederation of the Philippines; 2007
Metropolitan Bank***)

o In the Metropolitan Bank case, the RTWPB


 Fixing of Minimum Wage; Agencies exercises quasi-legislative power when it
fixes wage order
o RTWPB; composition and powers and
jurisdiction

 Power to fix the minimum wage  Jurisprudence; No Wage Distortion


and grant exemptions
o If increase in hiring rate is brought about by
o NWPC; composition, powers and jurisdiction the employer voluntarily and unilaterally
even without increasing the salary rates of
 It cannot fix the minimum wage old employees (2004 Bankard Employees
but the wage orders are subject to Union)
the review of the NWPC

 Promulgate rules and regulations


 Wage Distortion; Jurisprudence

With Love and Awesomeness


o No right to wage increase under a wage
 Fixing the Minimum Wage order if employee is receiving above
minimum wage (2006 Pag-asa Steel Work)
o Advantages/Disadvantages

 A: enhances the morale of workers


 Violation of Wage Order/s: Penalty
 D: it might lead to unemployment
if the employer cannot afford such o Civil liability: double indemnity (DOLE D.O.
10, S. 1998; 2009 Phil. Hoteliers, Inc)
 D: Legitimizes poverty
o Criminal Liability
o Principal policies:
 The LA does not have the power to
 Rationalize the fixing of minimum impose criminal liability; BP 129
wage governs 1
0
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

 Exception: home workers doing needle


work
 Terms, Definitions (DOLE D.O. 10, S. 1998)***

o Wage rates
 Effect of Pendency; Issuance of Compliance Order

o Wage order
o No compliance order shall be issued during
the application for exemption
o Unpaid benefits
o Remedy: RTWPB -NWPC-CA (rule 43?)- SC
 Basis for computing the double
indemnity
----------- END OF PART 1----------------
o Double Indemnity

o Notice of inspection result


 Wage enforcement and recovery tools
o Violation must be corrected within 5 days
from receipt A. Visitorial and enforcement power of the SOLE
(Article 128l Section 9, RA 6727)
o Compliance order
o Other visitorial powers (Article 274)
o Ten days to comply; otherwise, it becomes
final B. Simple money claims; requisites (Article 129; 1993
Rajah Humabon Hotel) - RD

 Double Indemnity; Rules; DO No. 10, S. 1998


 Scope of Power; Visitorial and Enforcement Power
o Definition
(Article 128)
o When to start period of computation
o The DOLE is fully empowered to determine
o Basis for the computation; effect of partial the existence of employer-employee
compliance relationship, subject to judicial review, not
review by the NLRC. NO limitation is
imposed by law. The DOLE does not need to
 Exemption from Wage Order seek the NLRC's determination (2012
People's Broadcasting Service [Bombo
A. By application (NWPC Guidelines No. 01, S. Radyo, Phils.])
1996)
o It may constitute res judicata, if the
o Distressed establishment (1997 Joy requisites are complied with (e.g. same
Brothers, Inc) parties, etc.)

 Including those affected by natural  Article 128; Types of DOLE Inspection; Issuance of
calamities Compliance Order
o Retail/service establishments (1999 C. A. Routine Inspection
Planas Commercial) (10 and below
employees; retail=selling goods directly to B. Complaint Inspection

With Love and Awesomeness


consumers)

o BMBE (capitalization of 3 Million)  Rules on Labor Law Compliance

o Published on August 7, 2013 (DOLE D.O.


B. By operation of law (Article 98) No. 131-13 dated July 19, 2013)

o This Title shall not apply to farm tenancy or o The basis of this is Article 128.
leasehold, domestic service and persons working in
o Before , they have the Manual for Labor
their respective homes in needle work or in any
Inspection but this has already been
cottage industry duly registered in accordance with
superseded by this new Labor Law
law.
Compliance D.O.
 GR: home workers are entitled to minimum
wage
 Labor Law Compliance System; Coverage 1
1
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

o All matters arising from the visitorial and A. A hearing officer conducts mandatory and continuous
enforcement power of the Sec/DOLE under conferences in a summary character.
Article 128 of the Labor Code
B. RD/DOLE issues a compliance order
 LLCS Modes of Implementation C. Appeal of compliance order to the Sec/DOLE
o It could be any or all of the following: A. 10 day period
1. Joint assessment - involves self- B. Grounds
assessment/checklist
C. Appeal bond - equivalent to the judgment
A. Coverage award
o Engaged in hazardous work D. Memorandum of appeal - a mere notice of
o Employing child employees appeal will not suffice

o Engaged in contracting and subcontracting E. Reply or opposition to appeal


arrangements F. Transmittal of records
o Phil. Registered ships or vessels engaged in G. Clarificatory conference
domestic shipping
H. Finality of resolution/decision of sec/DOLE
o Employing 10 or more employees
 There is no more appeal from the decision
of the Secretary; remedy is certiorari to the
2. Compliance visit CA under Rule 65

A. Upon receipt of SeNa referral (Section 7, DO  Filing of petition for certiorari from
No. 107, S. 2010) decision/resolution of sec/DOLE

B. When a complaint is filed against an  Execution


establishment
 Without a restraining order, it will not stop
o A surprise and unexpected visit the execution.
o Random interview of employees in an
establishment
------------- next topic: WAGE PROTECTION PROVISIONS
AND PROHIBITIONS REGARDING WAGES----------------------
3. Occupational safety and health standards
investigation
 Jurisprudence; Article 128
A. Coverage:
o Stoppage of operations under Article 128
o Existence of imminent danger
will not apply if the stoppage is ordered by
o Dangerous occurrences the DENR and not the DOLE.

o Accident resulting to disabling injury o Thus, "no work, no pay" during the period
of stoppage of operation (2008 National

With Love and Awesomeness


o Occupational safety and health standards
Mines and Allied Workers Union; Article
violations committed in plain view or in the
128)
presence of the LLCO
 Closure; Applicable Rule

o See: DOLE Dept. Circ. No. 3, S. 2009,


 You cannot stop, impede, interfere or delay these
Guidelines on the Procedure for Closure of
inspections/compliance checks (Article 128).
Business under RA 9231 dated October 22,
 LLCO : Labor Law Compliance Officer - person doing 2009
the compliance checks (previously inspections)  "close now, explain later"

o Closure after notice and hearing


 Applicable Procedure
Compliance Visit***
in Joint Assessment and o Immediate closure (close now, hear later) 1
 No Jurisdiction; Article 128 (?); Requisites
2
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

a. Where the employer-employee relationship o Issuance of xxx


has ceased; and
 Rules on xxx
b. Where no such relationship has ever existed
(2009 People's Broadcasting [Bombo Radyo
Phils] WAGE PROTECTION PROVISIONS
 Article 128; Jurisprudence

o Article 128 applies even if the amount  Prohibitions regarding wages, i.e. withholding of
involved exceeds 5,000.00 wages and authorized deductions
o The worker need not litigate to get what
 Non-interference in disposal of wages
legally belongs to him. The whole
enforcement machinery of the DOLE exists  Prohibition against compulsory patronage
to insure its expeditious delivery to him free
of charge (2009 Balladares) o No force, no inducement, no compulsion
from the employer to patronize the latter's
 This is inquisitorial in nature. products.

 May be initiated motu proprio.  Jurisprudence; Withholding of Wages

 Complaint is usually docketed as o While an employer has management


LS (labor standard compliance prerogative, it has no right to withhold
case) and there is no docket fee. salary/wages without consent of the
employee (Article 116, cited in 2010 SHS
 Exception Clause; Article 128
Perforated Materials, Inc.)
o The regional director/DOLE is divested of
o Any withholding of wages may only be
jurisdiction under Article 128 under the so-
allowed in the form of wage deductions
called "Exception Clause" (2009 Meteoro*)
under Article 113 of the Labor Code (ibid).
o What is the exception clause?
 Doctrine; Principle of Law
 Remedies; Article 128 vs. Article 129
o Deductions for loss or damage to tools,
o Remedy of aggrieved party from decision of materials, etc., supplied by employer or
RD/DOLE under Article 128? requiring deposit to answer for such loss or
damage (5J Taxi; 2000 Jardin)
 This is inquisitorial, either by
complaint or motu proprio.  Deposit/Cash Bond to answer for Loss or Damage;
Deductions
o Remedy of aggrieved party from decision of
RD/DOLE under Article 129? o The employer's policy must be authorized
by law, or regulations issued by the
 This is adversarial because it is Sec/DOLE. It must be proved to be a
initiated by a complaint. recognized practice in the jewelry
 Same requisites with an appeal manufacturing business, or that the
Sec/DOLE has come up with the appropriate

With Love and Awesomeness


from the Labor Arbiter to the
NLRC; within 10 days. rules that such policy is necessary or
desirable (2012 Nina Jewelry Manufacturing
 Posting of a bond equal to the case)
amount of the judgment award;
only the employer should post a
o There are laws in the Philippines that
require their employees to be bonded (as a
bond.
condition for continued employment).
 NLRC - MR with NLRC - CA - SC Unfortunately, there is none in the Labor
under Rule 45 Code that requires bonded employees . The
reason is not to unduly burden the
 Nature of Power; Jurisprudence employee's wage. - Atty. JMM
o Determination of liability of employer by the
 Special Law; Authorized Deduction
RD/DOLE under Article 128 - an exercise of
quasi-judicial power. o A member of a cooperative may in an 1
instrument, authorize his employer to
3
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

deduct his wage and remit to the employees were not able to claim their
cooperative for the payment of his unpaid Vl/SL, they complained.
obligation.
 Held: SC ruled in favor of Nestle. Since the
o In such a case, the obligation of the benefit is just an additional grant, the
employer is mandatory (Article 58, R.A. employees should follow the conditions set
9520 Philippine Cooperative Code of 2008) by the company.

 Non-diminution of benefits o Use of divisor (1999 Philippine Veterans Bank; 2001


Producers Bank)
o Principle against diminution of benefits and
supplements (Article 100; Article 127)  The bank used a divisor of 365 since the
employees are not really monthly paid
o Before effectivity of Labor Code - no
workers. When the bank changed it, the
distinction; cannot be unilaterally
employees complained.
o After effectivity of the Labor Code
 Held: SC ruled in favor of the employees.
 Is it a company policy?
o Bonus (1999 Manila Electric Co.)
 Did it ripene into practice?
 If the bonus is granted out of generosity
o 13th month pay (1993 Davao Fruits; 2005 and has not ripened into a company benefit
Honda Phils.) (all the conditions are met), the employees
o Gas and uniform allowance (1997 Manila should follow the conditions. It will be
Bank) discretionary on the part of the employer.

o VL/SL xxx  Jurisprudence; OT pay, Not Benefit

o Change of work schedule in the CBA from 9


am to 5 pm to 1 pm to 8 pm due to change
 Cont., Non-diminution of benefits in the program of horse races is
management prerogative.
o Xxx

----- started here after Midterm Part I:


o The overtime pay was not given
consistently, deliberately and
unconditionally bit as a compensation for
additional services rendered (2007 Manila
o 13th month pay (1993 Davao Fruits; 2005 Honda
Jockey Club Employees Labor Union-
Phils.)
PTGWO)
 Prorating of the 13th and 14th month pays o It was done in good faith; there was no
due to period of strike is not va;id, as it is intent to deprive the employees of their OT
contrary to company practuce under the pay.
CBA, citing 1993 case of Davao Fruits (2005
Honda Phils.)  Coca Cola Bottlers Philippines case (new one)

o Gas and uniform allowance (1997 Manila Bank)  Article 100. Prohibition Against Elimination or

With Love and Awesomeness


Diminution of Benefits.
 Whether the bank was in financial distress
or not, the employer is prohibited from o Nothing in this Book shall be construed to
unilaterally withdrawing the employees' gas eliminate or in any way diminish
and uniform allowance. supplements, or other employee benefits
being enjoyed at the time of promulgation
o VL/SL (1991 Nestle)
of this Code.
 There is nothing that prevents the employer
 Jurisprudence; OT Pay, Not Benefit
from being generous even if the VL/SL is a
mere grant of employment benefit and NOT o Overtime pay is not a benefit. It requires
found in the Labor Code. Nestle set rendition of additional services; and is not
conditions for the availment of these freely given. The requirement of rendering
benefits (e.g. if you do not claim it, you additional service differentiates xxx
cannot convert it to cash). When some
 Non- Diminution of Benefits
1
4
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

o The rule on company practice is generally  Children (RA 7610, as amended by


used with respect to grant of additional RA 9231)
benefits to employees, not to issues
involving diminution of benefits. (2011  Kasambahay (RA 10361)
University of the East)
 Concept; Principle of Law

o Hours worked; meaning: rest period (5-20


VI. PAYMENT OF WAGES minutes); work interruptions; waiting time'
assembly time' attendance at seminars (p.
217 of Codals)
 Payment
 See: IRR***
o Form (1995 Congson; 2004 National
Federation of Labor)  If there is a brownout but there is
imminence of resumption =
 Check is valid form of payment compensable.
ONCE it is encashed.
o Meal period (Article 85); shortened meal
o Place (1996 North Davao Mining); Bank (RA period (1998 Sime Darby)
6727); ATM (DOLE Labor Advisory, S. 1996)
 When the company reverted to the
 SC held that North Davao Mining 60-minute meal period from the
should reimburse the 20-minutes compensable meal
transportation expenses of the period which it implemented for
employees who had to travel for some time, the employees
about 2 1/2 hours to collect their complained that there is diminution
salaries. of benefits.

o Payee: the worker  Held: No diminution of benefits.


The company is only exercising its
 Exceptions to the rule (when the
management prerogative and the
employer can pay to another
60-minute meal period is stipulated
person); examples cited by Atty.
in the law as well.
JMM:
 Workweek:
 When there is
authorization letter a. Normal

 Affidavit of "heirship" if b. Compressed (DOLE Dept. Advisory No. 2, S.


the worker died before he 2004)
was able to claim his
salary  As long as it does not exceed 12
hours a day or 48 hours a week. If
o Time and frequency it exceeds such, they will still be
entitled to the overtime pay
 Unjust Enrichment Principle
despite the waiver that they've

With Love and Awesomeness


o Where workers' advances exceeded their signed pursuant to the Compressed
unpaid salaries, the overpaid amount made Work Week
by the employer should be paid back to the
o *** Health Personnel: workweek (1997 San
latter to avoid unjust enrichment (2006
Juan de Dios case)
Business Services of the Future Today)

o Solutio indebiti
 When the policy instruction went
beyond the authority vested under
the law, such P.I. is void.

VII. CONDITIONS OF EMPLOYMENT

 Hours of Work; Normal  Compressed Workweek; Concept

o Other Hours of Work; o An alternative arrangement whereby the


normal workweek xxx 1
5
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

 Objectives: o 13th month pay (DOLE D.O. No. 10, S.


1998)
o Xxx

o Under the existing guidelines, the approval


of the majority of the employees will suffice Note: Remember the rates!
to implement such CWW.

 Jurisprudence  Doctrine; Principle of Law


o Illegal compressed workweek when work o ** categories of workers paid by result;
days were reduced from 6 to 3 days a week, supervised and unsupervised xxx (1999
resulting to illegal reduction of work hours, Lambo and 2002 Tan cases)
as there was no adequate proof of losses
(2007 Linton Commercial and 2009 Rosa)  Jurisprudence

 Rest day; Non-regular Employees o "driver-conductor" is not a field personnel


(2005 Autobus Transport System)
o At least 24 consecutive hours; the rest day
is fixed by the employer, subject to the IRR o Driver who is required to be at a specific
(if the choice of the rest day is based on place and time with fixed hours of work, not
religion, the employer should honor it) a field personnel (2007 Duterte) as his time
and performance if supervised.
 No rest day; instances
 Overtime; Rule and Exceptions
o Instances:
o Actual work (1991 Cagampan; 1996 Stolt
Nielsen Services)
 Labor Standards; Exclusion  The complainant should prove the
o Employees excluded from labor standards actual work done (burden is on the
(Article 82; 1993 National Sugar Refineries; claimant); [what will be shifted to
1996 Salazar) the employer later on is the burden
of evidence, not the burden of
o *shift engineer, no right to overtime and proof?]
premium pay as he is an officer or member
of managerial staff (2006 Peneranda) o Waiver (1993 Lagatic; 2008 Bisig ng
Manggagawa sa Tryco) under CWW
o Who are managerial staff? - see IRR
 Refusal to work when there is
justifiable and reasonable need for
 Wage-Related Benefits; Examples such? - insubordination which is a
ground for disciplinary action
o Overtime pay
o Undertime; offset?
o Bonuses

o Night shift differential pay


With Love and Awesomeness


Holiday Pay
o Holiday pay
o Holiday Pay (Article 94) Rationale;
 Regular holiday: even if you don’t Exclusions
work, you will still be paid; if you
work, you get double compensation o Power to Fix Regular and Special Days (E.O.
for that day 292 as amended - revised administrative
code)
 12 (2 of which are Muslim
holidays)  Lodged with the President by
Proclamation to move the dates of
 Special day holidays except those with
"historical insignificance" - Atty.
o Premium pay
JMM
o Leave benefits
 Entitlement to Holiday Pau
1
6
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

o A regular holiday falling on employee's rest  Night Shift Differential Pay (Article 86)
day
 Service Charges (Article 96)
o 2 regular holidays falling on employee's rest
day

o 2 regular holidays falling on the same day

 Worked: 300 Special Laws; Other Benefits

1. Rank and file workers (PD 851)


 Not worked: 200
2. Married male workers (RA 8187)
 No holiday pay; forfeiture
3. Adoptive parents (RA 8552)
o GR: No forfeiture of holiday pay.
4. Solo parents (RA 8972)
o Exception:
5. Retirees (Article 287)
 IRR* : When an employee is on
6. Battered women (RA 9262)
leave without pay on the workday
immediately preceding a regular 7. Women workers (RA 9710)
holiday (UNLESS he works on such
regular holiday) 8. Nursing employees (RA 10028)

9. Drivers and conductors in public utility transport


 This has not been challenged yet (
system (DOLE D.O. No. 118-12, S. 2012)
petition for declaratory relief)
10. Night workers (RA 10151)
 Doctrine; Principle of Law

o Applicability of Mslim holidays to non-


muslims in Muslim regions (2002 San
Miguel Corp.) I. Rank and file workers (PD 851)
o DOLE Explanatory Bulletin dated March 11,
1993 affirmed as valid, on two (2) regular
holidays falling on the same day (2004 13th month pay (PD 851, as amended)
Asian Transmission Corp.) as there is no
reduction of number of holidays.
 Purpose

 Flexi-holidays schedule; Concept


 Coverage and exclusions

o One where the employees agree to avail the


o Only to rank and file employees regardless
of salary
holidays at some other days provided there
is no diminution of existing benefits as a o Piece-rate employees even if they are paid
result of such arrangement (DOLE Dept. are result are entitled to this benefit
Advisory No. 2, S. 2009)
o Kasambahays under the new law
 The swap should be with consent
of the employees and should not  How much

With Love and Awesomeness


lead to diminution. o At least 1/12 of total basic salary EARNED
during the calendar year

-------------  When due and payable

 Service Incentive Leave (Article 95); Exclusion  Jurisprudence:

 Night Shift Differential o Driver who is paid on a boundary basis, not


entitled to 13th month pay (G and E case)
 xxx
o Commissions not part of basic salary if in
Other Labor Standards the form of profit sharing payments, and
absence of clear, direct or necessary

 Service Incentive[ Leave (Article 95); Exclusion


relation to the amount of work actually
performed (2007 Reyes case)
1
7
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

 Basic salary excludes, in general,  Flexible Work Arrangement


commissions. This is subject to the
V. Retirees (Article 287)
qualification expressed by the SC
xxx  Requisites; age
o Overload pay, excluded from the 13th o 60 with at least 5 years of service (option of
month pay, as it is paid for additional work the employee)
in excess of the regular teaching load (2008
Letran Calamba Faculty and Employees o 65 (compulsory); no length of service
Association) required

 How much?

II. Married male workers (RA 8187); Paternity Leave o 1/2 month salary for every year of service
Act (?)

 Paternity leave; requisites  22.5 day's worth

o Employee at the time of delivery  Exemption


o Cohabiting with his spouse o Article 287: ONLY 2 EXEMPTIONS
o Applied for leave o Government employees

 Features o Retail or service establishments employing


not more than 10 employees
o Up to 4 births or miscarriages only

o 7 days

o No need to apply for leave if it is


 Underground workers have a different retirement
miscarriage because there would be no prior o 50 and 60 ?
notice

 Forfeiture (2006 Sy)


III. Adoptive parents (RA 8552); Domestic Adoption Act
of 1998 o Labor code applies only in the absence of a
reasonable retirement plan; otherwise, the
 Adoptive parents shall enjoy all the benefits that the retirement plan prevails and the employee
parents are entitled to is governed by its terms and conditions
o Maternity and paternity benefits and other
benefits given to biological parents upon
birth of the child shall be enjoyed if the VI. Battered women (RA 9262)
adoptee is below 7 years of age as of the
 10 day paid leave; must have a TPO presented to
date the child is placed with the adoptive
the employer for availment
parents thru the pre-adoptive parents xxx

IV. Solo parents (RA 8972)


 In addition to other leave benefits

With Love and Awesomeness


 Parental leave; requisites (NEDA social development
committee res. No. 2, S. 2002) VII. Women workers (RA 9710); Magna Carta of Women

o At least one year of service  Special leave benefit; full pay for 2 months based on
GROSS monthly compensation
o Prior notice to employer

o Solo parent identification card  In addition to leave privileges under existing laws

 This is renewable; entitlement is  Special Leave Benefit; Definition


not indefinite (e.g. once you get o Female employee's leave entitlement
married, you cease to be entitled
to this benefit) o 2 months with full pay based on gross

o This is not convertible to cash and no


monthly compensation
1
cumulative
8
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

o Following surgery caused by gynecological o Not less than 40 minutes for every 8 hours
disorders (Sec. 1) working period

o Provided, she has rendered continuous  This is on top of the meal period
aggregate employment service of at least 6
months for the last 12 months  40 minutes if compensable time

o Different from SSS Sickness Benefit  Include the time to get to and from
the workplace lactation station,
 In addition to leave benefits granted under existing considered compensable hours
laws (Sec. 8) worked
 However, similar or equal xxx (2012 IRR!!!! The  Duration and frequency xxx
previous one has been repealed!) ***
o In addition to regular time-off for meals
 Maximum Period of Leave with Pay (Section 12)
o 2 months maximum (Section 4) o Employers can, however, apply for an
exception with the DOH.
o Allowable period of leave with pay -
depends on certification of a competent
physician as to required period of
recuperation IX. Drivers and conductors in public utility transport
system (DOLE D.O. No. 118-12, S. 2012)
 Availment and Frequency
 Hours of work; not exceed 8 hours a day
o When: after undergoing surgery (Section 5)
 If required to work overtime, max hours of work
o Xxx shall not exceed 12 hours in any 24 hour period,
subject to safety and xxx
 Mode of Payment:

o After surgery  At least 1 hour, exclusive of meal breaks, within a 12


hour shift
o But employer, may in its discretion, pay
before or during surgery (Section 11)

o Non cumulative and non convertible to case X. Night workers (RA 10151
(Sec. 12)  Night workers

 Health assessment/health advice


VIII. Nursing employees (RA 10028); Expanded
1. Free of charge, when requested by the employee
Breastfeeding Promotion Act of 2009
a. Before taking up an assignment as night worker
 Any female worker, regardless of employment
status, who is lactating or breastfeeding, her infant b. At regular intervals during such assignment
and/or young child (Section 5, Rule II)
c. If he/she experiences health problems during such
o Infant: birth to 12 months; young child: 1-3 assignment

With Love and Awesomeness


year old?
 Mandatory xxx
 Accessible to the breastfeeding women
A. Suitable first aid and emergency facilities 9Rule
 Clean, well ventilated area xxx 1960, OSHS)

B. Lactation station (RA 10028; expanded breastfeeding


 Ensures privacy to express milk and/or in
promotion act of 2008)
appropriate cases, breastfeed
C. Separate toilet facilities for men and women
 In no case shall it be located in the toilet 9Section
10, Rule III) D. Facility for eating with potable drinking water

 Lactation station, definition: E. Transportation facility and or properly ventilated


temporary sleeping or resting quarters, separate for
o Private, clean, sanitary, and well-ventilated make and female workers
room xxx (where you can store it afterward) 1
9
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

1. Security of Tenure guaranteed by the Constitution (2007 Phil Daily


Inquirer) - it is in this right that the employer and
 Constitutional Basis (Article XIII, Section 3, the employee stand in equal footing!***
Constitution, 2009 Serrano)
o Period of probation: a. Labor Code; b. Manual of
 Statutory Basis (Article 279; Article 277 (b)) Regulations for Private Higher Education of 2008,
2010 Revised Manual of Regulations for Private
 Establishment covered (278) and employees covered
Schools in Basic Education
(280 and 281)

o All establishments are covered, even those


 LC: NOT EXCEEDING 6 months

which are not operating for profit. o Counting of Period of Probation ( 2004 Alcira and
2004 Mitsubishi Motor Phils.) ***

 Legal Principle
 We depend on the Civil Code because we do
not have a provision on the counting in the
o Section 3, Article XIII is not self-actuating; Labor Code.
it is not judicially enforceable. It cannot on
its own be a source of a positive enforceable  When the employer specifically mentions
right. It cannot be treated as a principal the months of the probation, the specific
source of direct enforceable rights (2009 number of days corresponding to the
Serrano, citing 2004 Agabon) months should be taken into account.

Jurisprudence
 Interference of the property right
of the employer pursuant to the o Probationary employee, considered regular if
police power of the State employee is not informed of the standards (2005
Aberdeen Court and 2005 Clarion Printing House;
Section 6, d; Rule 1, Book VI) and more so, if he did
A. Classification of Employees not undergo any performance evaluation (2006 Dusit
Hotel Nikko)
1. Regular employees (article 280); concept (Section 5,
a), Rule 1, Book VI)  Aberdeen: without standards=regular
a. By nature of work, primary test? employee

b. By years of service (casual employees  Examples of standards: work attitude,


becoming regular after 1 year of service) initiative, meet rating of 80% or above, etc.
; must be reasonable
2. Casual employee (Article 280); Concept (Section 5,
b), Rule I, Book VI  Period of probation commences to run from
the day the employee ACTUALLY STARTED
3. Probationary Employees (Article 281); Concept
WORKING, unless the contract stipulates
(Section 6, Rule 1, Book VI)
otherwise.
o A regular worker is either a probationary
o Fixing of probation is for the benefit of both parties
worker or a regular worker
(2003 Cebu Marine Beach Resort)
o A probationary employee is one, who, for a

With Love and Awesomeness


given period of time, is being observed and Neither of the parties can unilaterally
evaluated to determine whether or not he is terminate the period of probation
qualified for a permanent position (2007
 You can also terminate the probationary
Pasamba)
employee even before the end of the
o May also become a regular employee if he is probationary period for failure to meet
permitted to work beyond the probationary standards/criteria (ground: failure to
period qualify).

Legal Principle Exceptions to regular employment

o The right of a laborer to sell his labor to such o Xxx.


persons as he may choose is, in its essence, the
same as the right of an employer to purchase labor
from any person whom it chooses. The employer
and the employee have thus an equality of right
Next meeting: January 6, 2014 2
0
Labor Law Review Study Guide A.Y. 2013-14
Source: This study guide is taken from the slides of Atty. JMM and some personal notes during his lectures.

Exceptions to regular employment then re-hired, for more than one year, and
eventually placed under fixed term
employment, is considered regular
 Labor Code: project and seasonal employment employee. The term employment was a
mere ploy to deprive the worker of his
o SC: this is not exclusive. The list should tenurial security (2009 San Miguel, citing
allow those analogous or similar to these 1990 Brent School)
types of employment.
 Other classifications of employees

1. Workers in the construction industry ( DOLE


o Project employees: requisites; 2 types of activities D.O. no. 19, S. 1993)
(1994 ALU-TUCP and 1996 Cosmos Bottling)
2. Personnel in private educational institution
 Repeated and continuous re-hiring of
project employee (Maraguinot; 2005 i. manual of regulations for private
Integrated Construction and Plumbing higher education of 2008
Work) 1. Section 117. xxx the
probationary period of
 If the case of construction worker, there is
academic personnel
an existing guideline in determining their
employment status. -- not be more than six (6) consecutive semesters or nine (9)
consecutive trimesters of satisfactory service, as the case
 While there was repeated re-hiring, the may be….
hiring was not, however, continuous, as in
fact there was lapse of 33 months after the 2. Section 118. Regular or Permanent Status. A full
next project, the employee is a project and time academic teaching personnel who has
not regular (2009 Alcatel Phils) probationary employment and who possesses the
minimum qualifications required by the Commission
o Seasonal employee; seasonal industry; 2 requisites and the institution shall acquire a regular or
(2003 Hacienda Fatima and 2005 Hacienda permanent status if he is re-hired or re-appointed
Bino/Hortencia Stark) immediately after the end of his probationary
employment. ****
 Regular seasonal employee; Concept (1963
Manila Hotel; 1991 Mercado reconciled in 3. Xxx a part time employee cannot acquire regular
1998 Phil. Tobacco Flue Curing and permanent status and hence may be terminated
Redrying Corp.) when a qualified teacher becomes available.

 Jurisprudence: deep sea fishing business is ii. 2010 revised manual of regulations for private
not a seasonal undertaking. Catching fish is schools in basic education)
not seasonal (2006 Poseidon Fishing)
1. Section 63. Probationary Period; Regular or
especially where the boat crew although
Permanent Status. A probationary period of
employed on a per trip basis, has been
not more than three (3) years in the case of
working for 12 years.
the school teaching personnel and not more
o Fixed Term Employee; Requisites (1990 brent than six months for non-teaching personnel
School; 2004 Pangilinan) shall be required for employment in private

With Love and Awesomeness


schools.
 Seafarers are contractual workers and not
regular workers (2002 Millares, reiterated in A school personnel who has successfully undergone the
2004 Gi-Miro case and 2005 Ravago) probationary period herein specified and who is fully qualified
under the existing rules and regulations of the school shall be
 Jurisprudence: industry practice to hire a considered permanent.
reliever to ensure the smooth flowing 24
hour stevedoring and arrastre operations at
the pier area; employment is similar to  Continue from: OTHER MANAGEMENT
seasonal or project or term employee albeit PREROGATIVES!!! :)
on a daily basis (2007 Pier 8 Arrastre and
Stevedoring Services)***

 A forklift operator who was initially hired as


casual employee, and made to rest, and
2
1