STUDY GUIDE

LABOR STANDARDS LAW

1. THE EMPLOYER-EMPLOYEE RELATIONSHIP

The existence of an EMPLOYER-EMPLOYEE relationship is the

condition sine qua non for the application of the Labor Code,
specifically. Book in (Articles 83-96) on Conditions of Employment to
apply. Likewise, the jurisdiction of labor tribunals is premised on the
relationship. Excluded employees; Government employees. Managerial
employees, Other officers or members of the managerial staff, and
Domestic servants and persons in the personal service of another.

The term "EMPLOYER" refers to one who engages the services of

a worker or employee and pays his wages or salaries. It includes not
only the principal employer but any person acting in his interest,
directly or Indirectly. A labor organization, or any of its officers and
agents is not an employer except when acting as such.

An 'EMPLOYEE" is one who renders service to another under a

contract for hire, express or implied, oral or written, and is
compensated for his labor or service by wages.

An Individual whose, work has ceased as a result of, or in

connection with any unfair labor practice or a current labor dispute.
Including those who participate In a ULP or economic strike is still
considered an employee.

The employment relationship is essentially CONTRACTUAL and

VOLUNTARY. The relationship cannot be imposed on either the
employer or the employee. The worker is free to sell his labor to
anybody just as the employer can purchase labor from anyone he
chooses. To compel the employee to work against his will is
involuntary servitude; it is oppression to force an unwilling employer to
give work to a worker.

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2. TEST TO DETERMINE EXISTENCE OF RELATIONSHIP

Four-fold test or “control test”

Starting with the case of Viana v. Al Lagadan 99 Phil 408, the

Supreme Court used the following criteria in determining the existence
of employer-employee relationship:
a) selection and engagement of the employee;

b) payment of wages;

c) power of dismissal; and

d) power to control employee's conduct.

The "control test" is whether the employer controls or has

reserved the right to control the employee not only as to the result of
the work to be done but also as to .the means and methods by which
the same is to be accomplished.
The power of control refers 'merely to the "existence" of the
power and not to the "actual exercise" thereof.
Not every form of control that a party reserves to himself over
the conduct of the other party in relation to services being rendered
may be accorded the effect of establishing an employer-employee
relationship. Rules that merely serve as guidelines towards the
achievement of the mutually desired result and do not control or fix
the methodology or restrict the party hired to use such means do not
establish an employer-employee relationship.

Economic reality test

In the early case of Sunripe Coconut Products v. CIR 83 Phil. 518,

the Supreme Court used the “economic facts of the relation” in
determining the existence of employer-employee relationship.

In Sevilla v. Court of Appeals,1 the Supreme Court observed the

need to consider the existing economic conditions prevailing between
the parties, in addition to the standard of right-of-control like the
inclusion of the employee in the payrolls, to give a clearer picture in
determining the existence of an employer-employee relationship based
on an analysis of the totality of economic circumstances of the worker.
Thus, the determination of the relationship between employer
and employee depends upon the circumstances of the whole economic
activity,2 such as: (1) the extent to which the services performed are
an integral part of the employer’s business; (2) the extent of the
worker’s investment in equipment and facilities; (3) the nature and
degree of control exercised by the employer; (4) the worker’s
opportunity for profit and loss; (5) the amount of initiative, skill,
judgment or foresight required for the success of the claimed
independent enterprise; (6) the permanency and duration of the
1
G.R. Nos. L-41182-3, April 15, 1988, 160 SCRA 171, 179-180, citing Visayan Stevedore Transportation
Company v. Court of Industrial Relations, 125 Phil. 817, 820 (1967).
2
Rutherford Food Corporation v. McComb, 331 U.S. 722, 727 (1947); 91 L.Ed. 1772, 1777 (1946).

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relationship between the worker and the employer; and (7) the degree
of dependency of the worker upon the employer for his continued
employment in that line of business.3

The proper standard of economic dependence is whether the

worker is dependent on the alleged employer for his continued
employment in that line of business.4 In the United States, the
touchstone of economic reality in analyzing possible employment
relationships for purposes of the Federal Labor Standards Act is
dependency.5 By analogy, the benchmark of economic reality in
analyzing possible employment relationships for purposes of the Labor
Code ought to be the economic dependence of the worker on his
employer.

Two-tiered test

In Fransisco v. NLRC, G.R. No. 170087, August 31, 2006, the

Supreme Court held:

“However, in certain cases the control test is not sufficient to

give a complete picture of the relationship between the parties, owing
to the complexity of such a relationship where several positions have
been held by the worker. There are instances when, aside from the
employer’s power to control the employee with respect to the means
and methods by which the work is to be accomplished, economic
realities of the employment relations help provide a comprehensive
analysis of the true classification of the individual, whether as
employee, independent contractor, corporate officer or some other
capacity.
“The better approach would therefore be to adopt a two-tiered
test involving: (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; and (2) the underlying economic realities of
the activity or relationship.

“This two-tiered test would provide us with a framework of

analysis, which would take into consideration the totality of
circumstances surrounding the true nature of the relationship
between the parties. This is especially appropriate in this case where
there is no written agreement or terms of reference to base the
relationship on; and due to the complexity of the relationship based
on the various positions and responsibilities given to the worker over
the period of the latter’s employment.”

3. STATUS OF EMPLOYMENT

3
See Brock v. Lauritzen, 624 F.Supp. 966 (E.D. Wisc. 1985); Real v. Driscoll Strawberry Associates, Inc.,
603 F.2d 748 (9th Cir. 1979); Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 81 S.Ct. 933, 6
L.Ed.2d 100 (1961); Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947).
4
Halferty v. Pulse Drug Company, 821 F.2d 261 (5th Cir. 1987).
5
Weisel v. Singapore Joint Venture, Inc., 602 F.2d. 1185 (5th Cir. 1979).

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Art. 279. Security of tenure. In cases of regular employment, the
employer shall not terminate the services of an employee except for a just
cause or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages, inclusive of
allowances, and to his other benefits or their monetary equivalent computed
from the time his compensation was withheld from him up to the time of his
actual reinstatement. (As amended by Section 34, Republic Act No. 6715,
March 21, 1989)

Art. 280. Regular and casual employment. The provisions of written

agreement to the contrary notwithstanding and regardless of the oral
agreement of the parties, an employment shall be deemed to be regular
where the employee has been engaged to perform activities which are
usually necessary or desirable in the usual business or trade of the employer,
except where the employment has been fixed for a specific project or
undertaking the completion or termination of which has been determined at
the time of the engagement of the employee or where the work or service to
be performed is seasonal in nature and the employment is for the duration of
the season.

An employment shall be deemed to be casual if it is not covered by the

preceding paragraph: Provided, That any employee who has rendered at
least one year of service, whether such service is continuous or broken, shall
be considered a regular employee with respect to the activity in which he is
employed and his employment shall continue while such activity exists.

Art. 281. Probationary employment. Probationary employment shall not

exceed six (6) months from the date the employee started working, unless it
is covered by an apprenticeship agreement stipulating a longer period. The
services of an employee who has been engaged on a probationary basis may
be terminated for a just cause or when he fails to qualify as a regular
employee in accordance with reasonable standards made known by the
employer to the employee at the time of his engagement. An employee who
is allowed to work after a probationary period shall be considered a regular
employee.

REGULAR
A regular employee enjoys security of tenure and the right to seIf-
organization.
The following are considered regular employees:
1. Those who are engaged to perform activities which are
usually necessary or desirable in the usual trade or business of
the employer.

2. Those "probationary" employees who continue or are suffered

to work after the probationary period.

3. Those "casual" employees who have rendered at least one (1)

year of service, whether continuous or broken, shall be
considered regular with respect to me activity In which he Is
employed and this employment shall continue while such activity
exists.

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 4. Employees of a "labor-only" contractor.

CONTRACTUAL: Contractual employees only have limited right to

security of tenure and self-organization.

1. PROJECT/FIXED – PERIOD EMPLOYMENT, where the

employment has been fixed for a specific project or undertaking
the completion or termination of which has been determined at
the time of engagement.
* Delos Santos vs. Jebsen Maritime, Inc. Nov. 22,
2005

Seafarers are considered contractual employees – their

employment is governed by the contracts they sign every time
they are rehired and their employment is terminated when the
contract expires.

* Integrated Contractor and Plumbing Works, Inc. vs.

NLRCAug. 9, 2005

The failure of the employer to file termination reports

is an indication that the employee is not a project employee.

* Universal Robina Corp. vs. Catapang Oct. 14,

2005

The 5-month contract of employment was used by

petitioners as a convenient subterfuge to prevent private
respondents from becoming regular employees. Petitioners’ act
of repeatedly hiring private respondent negates their contention
that private respondents were hired for a specific project or
undertaking.

2. SEASONAL EMPLOYMENT, where the work or service to be

performed is seasonal in nature and the employment is for the
duration of the season.

REGULAR SEASONAL EMPLOYMENT

In Mercado vs. NLRC, Sept. 5,1991, the Supreme Court
held that even if the seasonal workers had rendered more than
one year of service, they could not be considered as regular
employees. “Petitioners, being project employees, or, to use the
correct term, seasonal employees, their employment legally
ends upon the completion of the project or the season. The
termination of their employment cannot and should not
constitute an illegal dismissal.”

However, in subsequent cases, the Supreme Court ruled

otherwise. Seasonal employees may attain regularity in
employment. Once they attained a regular status, they are
called “regular seasonal employees.” Seasonal employees are
regular but during the off-season, the employment is merely
suspended; the seasonal employees are merely temporarily laid-
off (Abasolo vs. NLRC, G.R. No. 118475, Nov. 29, 2000).

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 In Benares vs. Pancho, April 29, 2005, the Supreme Court
clarified and explained its seemingly conflicting rulings. In
Mercado case, the workers were engaged to do a particular
phase of agricultural work, after which they would be free to
render services to other farm owners who need their services. In
the Hacienda Fatima case (G.r. No. 149440, Jan. 28, 2003), the
workers performed the same tasks for petitioners every season
for several years. They were considered regular employees for
their respective tasks.

3. CASUAL EMPLOYMENT, where employment is neither regular,

project or seasonal.

* Lacuesta vs. Ateneo de Manila University Dec. 9,

2005

The Manual of Regulations for Private Schools, and not the

Labor Code, determines whether or not a faculty member in an
educational institution has attained regular or permanent status.

The Manual provides that full-time teachers who have

satisfactorily completed their probationary period shall be
considered regular or permanent. The requisites to acquire
permanent employment, or security of tenure, are : [1] the
teacher is a full-time teacher; [2] the teacher must have
rendered 3 consecutive years of service; and [3] such service
must have been satisfactory.

A part-time teacher cannot acquire permanent status. The

petitioner was a part-time lecturer before she was appointed as a
full-time instructor on probation. As a part-time lecturer, her
employment as such had ended when her contract expired.

Upon expiration of their contract of employment, academic

personnel on probation cannot automatically claim security of
tenure and compel their employers to renew their employment
contracts.

* Kasapian ng Malayang Manggagawa sa Coca-Cola

(KASAMMA-CCO)-CFW Local 245 vs. CA

Apr. 19, 2006

Under the law, a casual employee is only casual for 1 year,

and it is the passage of time that gives him the regular status –
even without a Memorandum of Agreement, casual employees
must be extended regular employment status after the lapse of 1
year.

4. PROBATIONARY EMPLOYMENT, where the employee is on trial

or probation during which the employer determines the
employee’s qualifications and fitness for regular employment.
(the apprenticeship agreement may stipulate a period longer
than 6 months)

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RECRUITMENT AND PLACEMENT OF WORKERS

Important Terms.

Art. 13. Definitions.

a. "Worker" means any member of the labor force, whether employed

or unemployed.

b. "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 for employment, locally or abroad, whether for profit or
not: Provided, That any person or entity which, in any manner, offers or
promises for a fee, employment to two or more persons shall be
deemed engaged in recruitment and placement.

c. "Private fee-charging employment agency" means any person or

entity engaged in recruitment and placement of workers for a fee
which is charged, directly or indirectly, from the workers or employers
or both.

d. "License" means a document issued by the Department of Labor

authorizing a person or entity to operate a private employment
agency.

e. "Private recruitment entity" means any person or association

engaged in the recruitment and placement of workers, locally or
overseas, without charging, directly or indirectly, any fee from the
workers or employers.

f. "Authority" means a document issued by the Department of Labor

authorizing a person or association to engage in recruitment and
placement activities as a private recruitment entity.

Illegal recruitment is committed by:

1. Non-licensees or non-holders of authority who engages in

recruitment activities contemplated under Article 13(b) of the
Labor Code or who commits any of the prohibited activities under
Article 34 of the Labor Code; and

2. Licensees or holders of authority who commit any of the

prohibited activities under Article 34 of the Labor Code.

Art. 34. Prohibited practices. It shall be unlawful for any individual,

entity, licensee, or holder of authority:

a. To charge or accept, directly or indirectly, any amount greater than

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 that specified in the schedule of allowable fees prescribed by the
Secretary of Labor, or to make a worker pay any amount greater than that
actually received by him as a loan or advance;

b. To furnish or publish any false notice or information or document in

relation to recruitment or employment;

c. To give any false notice, testimony, information or document or

commit any act of misrepresentation for the purpose of securing a license
or authority under this Code.

d. To induce or attempt to induce a worker already employed to quit his

employment in order to offer him to another unless the transfer is
designed to liberate the worker from oppressive terms and conditions of
employment;

e. To influence or to attempt to influence any person or entity not to

employ any worker who has not applied for employment through his
agency;

f. To engage in the recruitment or placement of workers in jobs harmful

to public health or morality or to the dignity of the Republic of the
Philippines;

g. To obstruct or attempt to obstruct inspection by the Secretary of Labor

or by his duly authorized representatives;

h. To fail to file reports on the status of employment, placement

vacancies, remittance of foreign exchange earnings, separation from jobs,
departures and such other matters or information as may be required by
the Secretary of Labor.

i. To substitute or alter employment contracts approved and verified by

the Department of Labor from the time of actual signing thereof by the
parties up to and including the periods of expiration of the same without
the approval of the Secretary of Labor;

j. To become an officer or member of the Board of any corporation

engaged in travel agency or to be engaged directly or indirectly in the
management of a travel agency; and

k. To withhold or deny travel documents from applicant workers

before departure for monetary or financial considerations other than those
authorized under this Code and its implementing rules and regulations.

Illegal recruitment is a crime separate and distinct from estafa.

In People vs. Manungas 231 SCRA 1, the Supreme Court held:

“Thus, accused-appellant is guilty of the crimes of Estafa and

Illegal Recruitment. Under Article 38 of the Labor Code, as amended,
the crime of illegal recruitment is qualified when the same is
committed against three (3) or more persons. A person who violates
any of the provisions under Article 13(b) and Article 34 of the Labor
Code can be charged and convicted separately of illegal recruitment
and estafa [Revised Penal Code, Article 315, 2(a)] because illegal
recruitment is a malum prohibitum where the criminal intent of the
accused is not necessary for a conviction while estafa is a malum in se
where criminal intent of the accused is necessary for a conviction.”

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Economic Sabotage

Illegal recruitment, if committed by a syndicate or done on a

large scale, is considered an offense involving economic sabotage,
hence, a higher penalty is imposed. It is deemed committed by a
syndicate if carried out by a group of three (3) or more persons
conspiring or confederating with one another, while it is deemed
committed in large scale if it is carried out against three (3) or more
persons. (Section 7(b), R.A. No. 8042)

EMPLOYMENT OF NON-RESIDENT ALIENS

Art. 40. Employment permit of non-resident aliens. Any alien
seeking admission to the Philippines for employment purposes and any
domestic or foreign employer who desires to engage an alien for
employment in the Philippines shall obtain an employment permit from
the Department of Labor.

The employment permit may be issued to a non-resident alien or to the

applicant employer after a determination of the non-availability of a
person in the Philippines who is competent, able and willing at the time
of application to perform the services for which the alien is desired.

For an enterprise registered in preferred areas of investments, said

employment permit may be issued upon recommendation of the
government agency charged with the supervision of said registered
enterprise.

Art. 41. Prohibition against transfer of employment.

a. After the issuance of an employment permit, the alien shall not

transfer to another job or change his employer without prior approval
of the Secretary of Labor.

b. Any non-resident alien who shall take up employment in violation of

the provision of this Title and its implementing rules and regulations
shall be punished in accordance with the provisions of Articles 289 and
290 of the Labor Code.

In addition, the alien worker shall be subject to deportation after

service of his sentence.

Art. 42. Submission of list. Any employer employing non-resident

foreign nationals on the effective date of this Code shall submit a list of
such nationals to the Secretary of Labor within thirty (30) days after
such date indicating their names, citizenship, foreign and local
addresses, nature of employment and status of stay in the country.
The Secretary of Labor shall then determine if they are entitled to an
employment permit.

GUIDELINES FOR THE ISSUANCE OF Alien Employment Permits (AEPs)

1. The following shall apply for AEP:

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All foreign nationals seeking admission to the Philippines for the
purpose of employment;

Missionaries or religious workers who intend to engage in gainful

employment;

Holders of Special Investors Resident Visa, Special Retirees Resident

Visa, Treaty Traders Visa or Special Non-immigrant Visa, who occupy
any executive, advisory, supervisory, or technical position in any
establishment;

Agencies, organizations or individuals whether public or private, who

secure the services of foreign professionals to practice their
professions in the Philippines under reciprocity and other international
agreements;

Non-Indo Chinese Refugees who are asylum seekers and given refugee
status by the UNCHR or DOJ;

Resident foreign nationals seeking employment in the Philippines

(Suspended under D.O. No. 21-02)

TRAINING AND EMPLOYMENT OF SPECIAL WORKERS

APPRENTICES

Art. 57. Statement of objectives. This Title aims:

1. To help meet the demand of the economy for trained manpower;

2. To establish a national apprenticeship program through the

participation of employers, workers and government and non-
government agencies; and

3. To establish apprenticeship standards for the protection of

apprentices.

Art. 58. Definition of Terms. As used in this Title:

a. "Apprenticeship" means practical training on the job

supplemented by related theoretical instruction.

b. An "apprentice" is a worker who is covered by a written

apprenticeship agreement with an individual employer or any of
the entities recognized under this Chapter.

c. An "apprenticeable occupation" means any trade, form of

employment or occupation which requires more than three (3)
months of practical training on the job supplemented by related
theoretical instruction.

d. "Apprenticeship agreement" is an employment contract wherein

the employer binds himself to train the apprentice and the
apprentice in turn accepts the terms of training.

Art. 59. Qualifications of apprentice. To qualify as an apprentice, a

person shall:

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 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.

Trade and industry associations may recommend to the Secretary

of Labor appropriate educational requirements for different
occupations.

Art. 60. Employment of apprentices. Only employers in the

highly technical industries may employ apprentices and only in
apprenticeable occupations approved by the Secretary of Labor and
Employment. (As amended by Section 1, Executive Order No. 111,
December 24, 1986)

Art. 61. Contents of apprenticeship agreements.

Apprenticeship agreements, including the wage rates of apprentices,
shall conform to the rules issued by the Secretary of Labor and
Employment. The period of apprenticeship shall not exceed six
months. Apprenticeship agreements providing for wage rates below
the legal minimum wage, which in no case shall start below 75 percent
of the applicable minimum wage, may be entered into only in
accordance with apprenticeship programs duly approved by the
Secretary of Labor and Employment. The Department shall develop
standard model programs of apprenticeship. (As amended by Section
1, Executive Order No. 111, December 24, 1986)

Art. 62. Signing of apprenticeship agreement. Every

apprenticeship agreement shall be signed by the employer or his
agent, or by an authorized representative of any of the recognized
organizations, associations or groups and by the apprentice.

An apprenticeship agreement with a minor shall be signed in his

behalf by his parent or guardian, if the latter is not available, by an
authorized representative of the Department of Labor, and the same
shall be binding during its lifetime.

Every apprenticeship agreement entered into under this Title

shall be ratified by the appropriate apprenticeship committees, if any,
and a copy thereof shall be furnished both the employer and the
apprentice.

Art. 63. Venue of apprenticeship programs. Any firm,

employer, group or association, industry organization or civic group
wishing to organize an apprenticeship program may choose from any
of the following apprenticeship schemes as the training venue for
apprentice:

a. Apprenticeship conducted entirely by and within the sponsoring

firm, establishment or entity;

b. Apprenticeship entirely within a Department of Labor and

Employment training center or other public training institution; or

c. Initial training in trade fundamentals in a training center or other

institution with subsequent actual work participation within the
sponsoring firm or entity during the final stage of training.

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 Art. 64. Sponsoring of apprenticeship program. Any of the
apprenticeship schemes recognized herein may be undertaken or
sponsored by a single employer or firm or by a group or association
thereof or by a civic organization. Actual training of apprentices may
be undertaken:

a. In the premises of the sponsoring employer in the case of

individual apprenticeship programs;

b. In the premises of one or several designated firms in the case of

programs sponsored by a group or association of employers or
by a civic organization; or

c. In a Department of Labor and Employment training center or

other public training institution.

Art. 65. Investigation of violation of apprenticeship

agreement. Upon complaint of any interested person or upon its own
initiative, the appropriate agency of the Department of Labor and
Employment or its authorized representative shall investigate any
violation of an apprenticeship agreement pursuant to such rules and
regulations as may be prescribed by the Secretary of Labor and
Employment.

Art. 66. Appeal to the Secretary of Labor and

Employment. The decision of the authorized agency of the
Department of Labor and Employment may be appealed by any
aggrieved person to the Secretary of Labor and Employment within five
(5) days from receipt of the decision. The decision of the Secretary of
Labor and Employment shall be final and executory.

Art. 67. Exhaustion of administrative remedies. No person

shall institute any action for the enforcement of any apprenticeship
agreement or damages for breach of any such agreement, unless he
has exhausted all available administrative remedies.

Art. 68. Aptitude testing of applicants. Consonant with the

minimum qualifications of apprentice-applicants required under this
Chapter, employers or entities with duly recognized apprenticeship
programs shall have primary responsibility for providing appropriate
aptitude tests in the selection of apprentices. If they do not have
adequate facilities for the purpose, the Department of Labor and
Employment shall perform the service free of charge.

Art. 69. Responsibility for theoretical instruction.

Supplementary theoretical instruction to apprentices in cases where
the program is undertaken in the plant may be done by the employer.
If the latter is not prepared to assume the responsibility, the same may
be delegated to an appropriate government agency.

Art. 70. Voluntary organization of apprenticeship

programs; exemptions.

a. The organization of apprenticeship program shall be primarily a

voluntary undertaking by employers;

b. When national security or particular requirements of economic

development so demand, the President of the Philippines may
require compulsory training of apprentices in certain trades,

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 occupations, jobs or employment levels where shortage of
trained manpower is deemed critical as determined by the
Secretary of Labor and Employment. Appropriate rules in this
connection shall be promulgated by the Secretary of Labor and
Employment as the need arises; and

c. Where services of foreign technicians are utilized by private

companies in apprenticeable trades, said companies are required
to set up appropriate apprenticeship programs.

Art. 71. Deductibility of training costs. An additional

deduction from taxable income of one-half (1/2) of the value of labor
training expenses incurred for developing the productivity and
efficiency of apprentices shall be granted to the person or enterprise
organizing an apprenticeship program: Provided, That such program is
duly recognized by the Department of Labor and Employment:
Provided, further, That such deduction shall not exceed ten (10%)
percent of direct labor wage: and Provided, finally, That the person or
enterprise who wishes to avail himself or itself of this incentive should
pay his apprentices the minimum wage.

Art. 72. Apprentices without compensation. The Secretary

of Labor and Employment may authorize the hiring of apprentices
without compensation whose training on the job is required by the
school or training program curriculum or as requisite for graduation or
board examination.
Apprenticeship needs DOLE’s prior approval, otherwise,
apprentice becomes a regular employee. (Nitto Enterprises vs. NLRC,
G.R. No. 114337, September 29, 1995)

LEARNERS

Art. 73. Learners defined. Learners are persons hired as

trainees in semi-skilled 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.

Art. 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.

Art. 75. Learnership agreement. Any employer desiring to

employ learners shall enter into a learnership agreement with them,
which agreement shall include:

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

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 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.

The learnership agreement shall be subject to inspection by the

Secretary of Labor and Employment or his duly authorized
representative.

Art. 76. Learners in piecework. Learners employed in piece or

incentive-rate jobs during the training period shall be paid in full for the
work done.

Art. 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.

APPRENTICESHIP LEARNERSHIP
Not less than 3 months practical Practical training on the job
training on the job but not more not to exceed 3 months
than 6 months
Practical training on the job Hiring of persons as trainees
supplemented by related in semi-skilled and other
theoretical instruction industrial occupations which are
non-apprenticeable and which
may be learned through
practical training on the job in a
relatively short period of time
No commitment to hire With a commitment to
employ the learner as regular
employee if he desires upon
completion of learnership
Worker is not considered an Learner is considered regular
employee employee after 2 months of
training and dismissal is without
fault of the learner
Highly skilled or technical Semi-skilled/industrial
industries and industrial occupation (non-
occupation
apprenticeable)
Requires DOLE approval for Not required
validity
Exhaustion of administrative Exhaustion of administrative
remedies in case of breach of remedies in case of breach of
contract is a precondition for filing contract is not a precondition
action for filing action

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HANDICAPPED WORKERS

Art. 78. Definition. Handicapped workers are those whose

earning capacity is impaired by age or physical or mental deficiency or
injury.

Art. 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.

Art. 80. Employment agreement. Any employer who employs

handicapped workers shall enter into an employment agreement with
them, which agreement shall include:

1. The names and addresses of the handicapped workers to be

employed;

2. The rate to be paid the handicapped workers which shall not be

less than seventy five (75%) percent of the applicable legal
minimum wage;

3. The duration of employment period; and

4. The work to be performed by handicapped workers.

The employment agreement shall be subject to inspection by the

Secretary of Labor or his duly authorized representative.

Art. 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
impede the performance of job operations in the particular occupations
for which they are hired.

Handicapped persons may become regular employees.

(Bernardo vs. NLRC, G.R. No. 122917, July 12, 1999)

WAGES AND BENEFITS

TITLE 1 - WORKING CONDITIONS AND REST PERIODS

HOURS OF WORK

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.

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.

15
 "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.

Art. 83. Normal hours of work. The normal hours of work of

any employee shall not exceed eight (8) hours a day.

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.

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.

Rest periods of short duration during working hours shall be

counted as hours worked.

Art. 85. Meal periods. Subject to such regulations as the

Secretary of Labor may prescribe, it shall be the duty of every
employer to give his employees not less than sixty (60) minutes time-
off for their regular meals.

Art. 86. Night shift differential. Every employee shall be paid

a night shift differential of not less than ten percent (10%) of his
regular wage for each hour of work performed between ten o’clock in
the evening and six o’clock in the morning.

Art. 87. Overtime work. Work may be performed beyond eight

(8) hours a day provided that the employee is paid for the overtime
work, an additional compensation equivalent to his regular wage plus
at least twenty-five percent (25%) thereof. Work performed beyond
eight hours on a holiday or rest day shall be paid an additional
compensation equivalent to the rate of the first eight hours on a
holiday or rest day plus at least thirty percent (30%) thereof.

Art. 88. Undertime not offset by overtime. Undertime work

on any particular day shall not be offset by overtime work on any other
day. Permission given to the employee to go on leave on some other
day of the week shall not exempt the employer from paying the
additional compensation required in this Chapter.

Art. 89. Emergency overtime work. Any employee may be

required by the employer to perform overtime work in any of the

16
following cases:

a. When the country is at war or when any other national or local

emergency has been declared by the National Assembly or the Chief
Executive;

b. When it is necessary to prevent loss of life or property or in case

of imminent danger to public safety due to an actual or impending
emergency in the locality caused by serious accidents, fire, flood,
typhoon, earthquake, epidemic, or other disaster or calamity;

c. When there is urgent work to be performed on machines,

installations, or equipment, in order to avoid serious loss or damage
to the employer or some other cause of similar nature;

d. When the work is necessary to prevent loss or damage to

perishable goods; and

e. Where the completion or continuation of the work started before

the eighth hour is necessary to prevent serious obstruction or
prejudice to the business or operations of the employer.

Any employee required to render overtime work under this

Article shall be paid the additional compensation required in this
Chapter.

Art. 90. Computation of additional compensation. For

purposes of computing overtime and other additional remuneration as
required by this Chapter, the "regular wage" of an employee shall
include the cash wage only, without deduction on account of facilities
provided by the employer.

HOURS OF WORK

1. NORMAL HOURS: EIGHT (8) HOURS within workday

2. HOSPITAL PERSONNEL: EIGHT (8) HOURS for FIVE (5) DAYS

for health personnel in cities and municipalities with a population of at
least 1,000,000 or in hospitals or clinics with a bed capacity of at least
100 beds; the 40-hour workweek is designed to reduce health risks due
to exposure to patients with contagious diseases. In exigencies, health
personnel may be required to work for SIX (6) DAYS or FORTY-BGHT
(48 HOURS but they shall be paid an additional 30% of their regular
wage on the sixth day.

3. REDUCTION OF WORK HOURS: as a general rule the reduction

which would involve the corresponding diminution of pay cannot be
done unilaterally.

4. COMPRESSED WORK WEEK: Reducing the workweek by

prolonging the daily work hours without payment of overtime may be
allowed provided the employees consent, there is no diminution of pay
and such is approved by the DOLE.

5. HOURS DEEMED WORKED

17
5.1. All hours worked which the employee is required to be on
duty or at the prescribed workplace and all the time which an
employee is suffered or permitted to work.

5.2. An employee need not leave the premises of the workplace

in order that his rest period shall not be counted, it being enough
that he stops working, may rest completely and may leave his
workplace, to go elsewhere whether within or outside the
premises of his workplace.

5.3. If the work performed was necessary or benefited the

employer, or me 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.

5.4. The time during which an employee is inactive by reason of

interruptions in his work beyond his control shall be considered
time work 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.

5.5. WAITING TIME: this is considered hours worked if waiting is

an integral part of his work and the employee Is required or
engaged by the employer to wait; or if the employee is required
to remain on call in the employer's premises or close thereto that
he cannot use the time effectively and gainfully for his own
purpose.

5.5. TRAVEL TIME: normal travel time from home to work is not
compensable; however if the employee receives an emergency
call outside his regular working hours and is required to travel to
his regular place of work or to some other work site, all the time
spent in such travel is worked time.

5.6. ASSEMBLY TIME: where the assembly time is so structured,

both as to duration and purpose. Into the workday, as to be an
Integral part thereof, since the time was used to check
attendance, to give out work assignments and to brief the
workers on their respective tasks, the same may be considered
worked time.

5.7 ATTENDANCE AT MEETINGS: Attendance is not considered

hours worked when the attendance is outside of the employee's
regular working hours; attendance is, in fact, voluntary; and the
employee does not perform any productive work during such
attendance.

5.8. POWER OUTAGE: Compensable if for a short duration of 20

minutes; if more, not compensable if the employees can leave
their workplace or go elsewhere within or without the work
premises; and, the employees can use the time effectively for
themselves. The employer may extend the work hours outside

18
 the regular schedules to compensate for the Interruptions
without obligation for overtime pay.

5.9. MEAL/BREAK PERIODS: ONE (1) HOUR for regular meals;

Rest periods or coffee breaks running from 5-20 minutes shall be
considered compensable time.

Shortened Meal Break

Requisites:

1) The employees voluntarily agree in writing to a

shortened meal period and are willing to waive the
overtime pay for such shortened meal period;

2) There will be no diminution whatsoever in the salary

and other fringe benefits of the employees existing before
the effectivity of the shortened meal period;

3) The work of the employees does not involve

strenuous physical exertion and they are provided with
adequate coffee breaks;

4) The value of benefits is equal to the compensation

due them for the shortened meal period;
5) Overtime pay will become due and demandable if
ever they are permitted or made to work beyond 4:30 pm.

6) The arrangement is of temporary duration.

OVERTIME WORK: Work beyond EIGHT (8) HOURS on ordinary

working days shall be paid an additional TWENTY- FIVE (25%) PERCENT
of the regular wage; THIRTY (30%) PERCENT of his holiday/rest day
rate, on regular/special holidays and rest days. Proof of overtime work
is required for the employee to be entitled to payment.

General Rule : Waiver of overtime pay is not allowed.

Exceptions:

1) when the waiver is made in consideration of benefits and

privileges which may be more than what will accrue to them in
overtime pay

2) compressed workweek:

- allowable only under the following conditions:

* voluntary on the part of the worker;

* no diminution of the weekly or monthly take-home pay and

fringe benefits of the employees;

* the value of the benefits that will accrue to the employees

19
 under the proposed schedule is more than or at least
commensurate with the 1-hour overtime pay that is due them
during weekdays

* the 1-hour overtime pay will become due and payable if

they are made or permitted to work on a day not scheduled
for work on the compressed workweek;

* the work does not involve strenuous physical exertion and

employees must have adequate rest periods;

* the arrangement is of temporary duration.

WEEKLY REST PERIODS

Art. 91. Right to weekly rest day.

a. It shall be the duty of every employer, whether operating for

profit or not, to provide each of his employees a rest period of not less
than twenty-four (24) consecutive hours after every six (6) consecutive
normal work days.

b. The employer shall determine and schedule the weekly rest

day of his employees subject to collective bargaining agreement and
to such rules and regulations as the Secretary of Labor and
Employment may provide. However, the employer shall respect the
preference of employees as to their weekly rest day when such
preference is based on religious grounds.

Art. 92. When employer may require work on a rest day.

The employer may require his employees to work on any day:

a. In case of actual or impending emergencies caused by serious

accident, fire, flood, typhoon, earthquake, epidemic or other disaster or
calamity to prevent loss of life and property, or imminent danger to
public safety;

b. In cases of urgent work to be performed on the machinery,

equipment, or installation, to avoid serious loss which the employer
would otherwise suffer;

c. In the event of abnormal pressure of work due to special

circumstances, where the employer cannot ordinarily be expected to
resort to other measures;

d. To prevent loss or damage to perishable goods;

e. Where the nature of the work requires continuous operations

and the stoppage of work may result in irreparable injury or loss to the
employer; and

f. Under other circumstances analogous or similar to the

foregoing as determined by the Secretary of Labor and Employment.

Art. 93. Compensation for rest day, Sunday or holiday

work.

20
 a. Where an employee is made or permitted to work on his
scheduled rest day, he shall be paid an additional compensation of at
least thirty percent (30%) of his regular wage. An employee shall be
entitled to such additional compensation for work performed on
Sunday only when it is his established rest day.

b. When the nature of the work of the employee is such that he

has no regular workdays and no regular rest days can be scheduled, he
shall be paid an additional compensation of at least thirty percent
(30%) of his regular wage for work performed on Sundays and
holidays.

c. Work performed on any special holiday shall be paid an

additional compensation of at least thirty percent (30%) of the regular
wage of the employee. Where such holiday work falls on the
employee’s scheduled rest day, he shall be entitled to an additional
compensation of at least fifty per cent (50%) of his regular wage.

d. Where the collective bargaining agreement or other

applicable employment contract stipulates the payment of a higher
premium pay than that prescribed under this Article, the employer
shall pay such higher rate.

Premium Pay for Rest Day/Holiday Work

REST DAY / SPECIAL HOLIDAY PAY: additional THIRTY (30%)

PERCENT of regular pay for working on the agreed rest day (130%).

SPECIAL HOLIDAY and REST DAY PAY: where the special holiday is
also the employee's rest day, he shall be entitled to an additional FIFTY
(50%) PERCENT of his regular pay (150%).

There are two kinds of special holidays, national and local. On National
Special Holidays (November I," December 31) and Local Special
Holidays (Lopez Jaena, Evelio Javier) the principle of ^no work, no pay"
applies.

Local Special Holidays, unless declared as “non-working", are generally

regular working days and the employee is only entitled to his regular
pay if he works.

REGULAR HOLIDAY: additional ONE HUNDRED (100%) PERCENT of

regular wage (200%).

REGULAR HOLIDAY and REST DAY: additional ONE HUNDRED SIXTY

(160%) PERCENT of regular wage (260%).

DOUBLE HOLIDAY: additional TWO HUNDRED (200%) PERCENT of

regular pay (300%)

Compensation for Rest Day, Sunday or Holiday Work

For work done on rest day, and special holidays or special day,
the employer must pay the employee:
1. regular remuneration

21
 2. premium pay of 30% of the regular remuneration

An employee’s rest day can be any day of the week; work on

Sunday, if it is not the employee’s rest day, does not give any extra
pay, unless the law on holiday pay is applicable

Article 93 Article 94

REST DAY / SPECIAL HOLIDAY PAY: REGULAR HOLIDAY: additional

additional THIRTY (30%) PERCENT ONE HUNDRED (100%) PERCENT
of regular pay for working on the of regular wage (200%).
agreed rest day {130%).

HOLIDAYS, SERVICE INCENTIVE LEAVES AND SERVICE CHARGES

Art. 94. Right to holiday pay.

a. Every worker shall be paid his regular daily wage during

regular holidays, except in retail and service establishments regularly
employing less than ten (10) workers;

b. The employer may require an employee to work on any

holiday but such employee shall be paid a compensation equivalent to
twice his regular rate; and

c. As used in this Article, "holiday" includes: New Year’s Day,

Maundy Thursday, Good Friday, the ninth of April, the first of May, the
twelfth of June, the fourth of July, the thirtieth of November, the
twenty-fifth and thirtieth of December and the day designated by law
for holding a general election.

Art. 95. Right to service incentive leave.

a. Every employee who has rendered at least one year of service

shall be entitled to a yearly service incentive leave of five days with
pay.

b. This provision shall not apply to those who are already

enjoying the benefit herein provided, those enjoying vacation leave
with pay of at least five days and those employed in establishments
regularly employing less than ten employees or in establishments
exempted from granting this benefit by the Secretary of Labor and
Employment after considering the viability or financial condition of
such establishment.

c. The grant of benefit in excess of that provided herein shall not

be made a subject of arbitration or any court or administrative action.

* JPL Marketing Promotions vs. CA July 8, 2005

While computation for the 13th month pay should properly begin
from the first day of employment, the service incentive leave pay
should start a year after commencement of service, for it is only then

22
that the employer is entitled to said benefit.

Art. 96. Service charges. All service charges collected by

hotels, restaurants and similar establishments shall be distributed at
the rate of eighty-five percent (85%) for all covered employees and
fifteen percent (15%) for management. The share of the employees
shall be equally distributed among them. In case the service charge is
abolished, the share of the covered employees shall be considered
integrated in their wages.

WAGES
Art. 97. Definitions. As used in this Title:

a. "Person" means an individual, partnership, association,

corporation, business trust, legal representatives, or any organized
group of persons.

b. "Employer" includes any person acting directly or indirectly in

the interest of an employer in relation to an employee and shall
include the government and all its branches, subdivisions and
instrumentalities, all government-owned or controlled corporations and
institutions, as well as non-profit private institutions, or organizations.

c. "Employee" includes any individual employed by an

employer.

d. "Agriculture" includes farming in all its branches and, among

other things, includes cultivation and tillage of soil, dairying, the
production, cultivation, growing and harvesting of any agricultural and
horticultural commodities, the raising of livestock or poultry, and any
practices performed by a farmer on a farm as an incident to or in
conjunction with such farming operations, but does not include the
manufacturing or processing of sugar, coconuts, abaca, tobacco,
pineapples or other farm products.

e. "Employ" includes to suffer or permit to work.

f. "Wage" paid to any employee shall mean the remuneration or

earnings, however designated, capable of being expressed in terms of
money, whether fixed or ascertained on a time, task, piece, or
commission basis, or other method of calculating the same, which is
payable by an employer to an employee under a 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 and Employment, of board,
lodging, or other facilities customarily furnished by the employer to the
employee. "Fair and reasonable value" shall not include any profit to
the employer, or to any person affiliated with the employer.

g. Art. 98. Application of Title. This Title shall not apply to

farm tenancy or leasehold, domestic service and persons working in
their respective homes in needle work or in any cottage industry duly

23
registered in accordance with law.

WHAT CONSTITUTES WAGE (ARTICLE 97[F])

1. "WAGE" includes remuneration or earnings, however

designated, capable of being expressed in terms of money, whether
fixed or ascertained on a time, task, piece, or commission basis, or
other method of calculating the same, which is payable by an
employer 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 and Employment, of board, lodging and other
facilities customarily furnished by the employer to the employee.

2. "COMMISSIONS" are considered wages if these are paid as

direct remuneration for services rendered and that the payment by
commissions is simply a form or manner of computation of wages.
Commissions, such as "productivity" bonuses or incentives are
generally not considered part of wages.

3. '"FACILITES" are articles or services provided by the employer

for the benefit of his employee or his family but shall not include tools
of the trade or articles of services primarily for the benefit of the
employer or necessary to the conduct of the employer's business;
these are items of expense of the employee as the employee would
spend and pay for the same if not furnished by the employer and these
may be charged or deducted from the employee's wages.

4. "SUPPLEMENTS" are extra remuneration or special privileges

or benefits given to or received by the laborers over and above their
ordinary earnings and wages. These cannot be deducted, "from the
employee's wages.

5. A "BONUS", "GRATUITY” or "ALLOWANCE" is generally not part

of wages and Is not demandable as a matter of right/ as this is In the
nature of a gift freely given by the employer in appreciation for certain
favors or services rendered. However, these items may be considered
part of wages and demandable from the employer by virtue of contract
or voluntary employer policy.

PRINCIPLES IN DETERMINING WAGE

"NO WORK. NO PAY": The principle of "a fair day's wage for a
fair day's labor” is the rule in determining wages. If no work is
rendered/ no wage is demandable unless the worker who is ready,
willing and able/ is prevented from working by the employer, i.e.
suspension/lock-out, dismissal etc. If stoppage of work is not
attributable to either part, each must bear his own loss, i.e. brown-
outs/acts of God, etc.

A "DAILY PAID" employee is one who is paid under the principle

of "no-'work, no pay". The factors or divisors used to determine his
wages are generally 303, 314, 252 or 262 days.

24
 A "MONTHLY PAID" employee is one who is considered paid
even if he does not work on his rest days using the factor 365 days.

CHOICE OF FACTORS/DIVISORS: It is management

prerogative, to determine the factor to determine wages. The general
rule is 303 or 314.

Methods of Wage Fixing

FLOOR METHOD: an amount Is designated as the floor

minimum below which the wage is illegal. Those receiving wages
above the floor minimum do not get an increase.

SALARY CEILING: the wage increase is given to those who are

receiving wages below the salary ceiling. Those above the ceiling do
not benefit from the wage increase.

EXEMPTION FROM WAGE INCREASES: An application may be

filed with the Regional Tripartite Productivity Wage Board (RTPWB) by;
distressed employers, new business enterprises, retail/service
establishments employing not more than 10 employees,
establishments adversely affected by natural calamities.

* C. Planas Commercial vs. NLRC Nov. 11, 2005

For a retail/service establishment to be exempted from the

coverage of the minimum wage law, it must be shown that the
establishment is regularly employing not more than 10 workers and
had applied for exemptions with and as determined by the appropriate
Regional Board.

Wage Distortion

Nature

Mandated wage increase results in ELIMINATION of quantitative

differences in the rates of pay; or SEVERE CONTRACTION of intentional
quantitative difference in wage rates between and among employee
groups in an establishment as to EFFECTIVELY OBLITERATE the wage
distinctions in such wage structure based on SKILLS/ LENGTH OF
SERVICE and OTHER LOGICAL BASES OF DIFFERENTIATION.

Effect

In organized establishments, the distortion shall be resolved

through the grievance machinery and voluntary arbitration; in
unorganized establishment, the distortion shall be the subject of
mediation by the NCMB and compulsory arbitration by the NLRC.

The correction of the distortion does not require that the

previous difference be restored in exactly the same amount. It is
enough that a substantial difference is achieved.

Non-diminution Rule

25
Definition

These are benefits being given to employees cannot be taken

back or reduced unilaterally by the employer because the benefits has
become part of the employment contract, written or unwritten

Application

It is applicable if it is shown that the grant of the benefit is based

on an express policy or has ripened into a practice over a long period
of time and that the practice is consistent and deliberate

Bonus

Definition

It is a supplement or employment benefit given under certain

conditions.

It is an amount granted voluntarily to an employee for his

industry and loyalty which contributed to the success and realization of
profits of the employer’s business; an act of generosity

Application

It is not demandable and enforceable obligation; but it becomes

so when it is made part of the wage or compensation
It is part of the wage if it is an additional compensation which the
employer promised to give without any conditions imposed for its
payment but if it is paid only if profits are realized or a certain amount
of productivity achieved, it cannot be considered part of the wage

13th-month Pay

 ONE-TWELFTH (1/12) total annual earnings on basic salary;

"Commissions" are considered part of the basic salary if these are
direct remuneration for services rendered

 Additional income based on wage but not part of the wage

 All rank-and-file employees regardless of their designation or

employment status and irrespective of the method by which their
wages are paid, are entitled to this benefit, provided that they have
worked for at least one month during the calendar year

 If the employee worked for only a portion of the year, the 13th
month pay is computed pro rata (in proportion to the length of time he
worked during the year)

Payment of Wages

Forms of Payment

Payment must be in legal tender only.

When is payment by check/money order permissible?

1. Such manner is customary;

26
2. When so stipulated; and

3. When there is a bank or facility for encashment within a radius

of one kilometer provided that the employer or his agent does
not receive any pecuniary benefit.

Time of Payment

Wages shall be paid at least once every two(2) weeks or twice a

month at intervals not exceeding sixteen (16) days

Place of Payment

Wages shall be made at or near the place of undertaking, except

as otherwise provided by such regulations as the Secretary of
Labor may prescribe under conditions to ensure greater
protection of wages.

PROHIBITIONS REGARDING WAGES

NON-INTERFERENCE IN DISPOSAL (ARTICLE 112); force or oblige

employee to purchase merchandise or property from employer or
make use of employer's service or store

WAGE DEDUCTION (ARTICLE 113): no deduction except for premium

for insurance; union dues and authority to check-off with consent
employee; when authorized by law or the Secretary of Labor.
DEPOSIT FOR LOSS/DAMAGE (ARTICLES 114-115) no deposit from
which to deduct loss or damage of tools, materials, or equipment
supplied by employer except when such deposits are customary or
authorized by business practice, or is necessary or desirable as may be
determined by the Secretary of Labor. Deductions can be made only
after due process and the employee's responsibility therefor is
established.

WITHHOLDING OF WAGES/KICKBACKS (ARTICLE 116); withholding of

wages by force, stealth, intimidation, threats, etc,

DEDUCTION TO ENSURE EMPLOYMENT (ARTICLE 117); deduction as

consideration of a promise of employment or retention of employment
RETALIATORY MEASURES (ARTICLE 118); refusal to pay or reduction of
pay as retaliation for the filing of complaint or giving of testimony by
the employee against the employer.
FALSE REPORTING (ARTICLE 119); making false statements, reports or
records regarding wages.

Job/Labor Contracting

Permissible Job Contracting

27
 The contractor carries on an independent business and
undertakes the contract work on his own account under his own
responsibility according to his own manner and method, free from
control and direction of his employer or principal in all matters
connected with the performance of the work except as to the results
thereof.

The contractor has substantial capital or investment in the form

of tools/equipment, machineries, work premises and other materials,
which are necessary in me conduct of business.

Conditions for Permissible Job Contracting

The contractor must be duly licensed by DOLE.

There should be a written contract between the contractor and

the principal that will assure the employees at least the minimum labor
standards and benefits provided by existing laws.

Prohibited Activities

1. Labor-only contracting;

2. Contracting out of work or service performed by union members

that interferes with, restrains or coerces employees in the exercise of
their right to self-organization;

3. Contracting out of work that will either displace employees of the

principal employer or reduce their work hours and/or take-home pay;

4. Contracting out of work or service that is directory related to the

business and operation of the employer during the existence of a labor
dispute involving his employees, regardless of whether the dispute
directly involves work stoppages, except when authorized by
competent authority when justified by public Interest;

5. Contracting out with recruitment, placement or any other agency

which is not duly licensed as contractor; and

6. Contracting out of positions vacated by regular employee.

28
 JOB CONTRACTING LABOR-ONLY
CONTRACTING

There is no employer-employee Employer-employee

relationship between the principal relationship exists
and the employees of the
contractor

The principal Is considered only The principal is considered

an "indirect'' employer under the direct employer under
Article 107 of the Labor Code Article 106 in Labor-only
Contracting

The principal in Job Contracting The principal in Job

is made jointly and severally Contracting is made jointly
liable only, for the payment of and severally liable for the
wages. Other claims are not payment of wages, and Other
included. claims are included.

The contractor provides specific

services or undertakes a specific What is provided is only
job manpower or personnel to
work for the principal.

6.3.2 MATERNITY LEAVE: (RA 7322) Leave with pay for SIXTY (60)
DAYS, for Normal delivery, SEVENTY-EIGHT (78) DAYS for
Caesarian operation, for the first FOUR. (4) deliveries, for
pregnant women whether married or unmarried.

6.3.3 PATERNITY LEAVE: (RA 8187) Leave with pay for SEVEN (7)
DAYS for the first POUR (4) deliveries of the legitimate spouse
with whom he is cohabiting.

6.3.4 CBA/OTHER BENEFITS; These are not mandated by law but

may be granted pursuant to contractual arrangements under the
CBA, the individual employee contract or the voluntary employer
policy of the employer. Examples are: VACATION / SICK LEAVE,
LONGEVITY PAY, HAZARD PAY, BEREAVEMENT PAY, etc. .

6.4 SPECIAL CONCERNS FOR WOMEN EMPLOYEES

6.4.1 FACILITIES FOR WORKING WOMEN (ARTICLE 132): provide

seats, separate toilets and dressing rooms, nurseries and special
retirement plans for certain occupations.
6.4.2 FAMILY PLANNING SERVICES (ARTICLE 134); free family
planning services and prescribe incentive bonus schemes.
6.4.3 DISCRIMINATION PROHIBITED (ARTICLE 135): payment of
lesser compensation, favoring male workers for promotion,
training, study and scholarship grants. Criminal action may be

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 instituted under this provision.
6.4.4 STIPULATION AGAINST MARRIAGE (ARTICLE 136); unlawful
to require as condition for employment that a woman shall not
get married, or to stipulate that upon getting married she shall
be deemed resigned, or separated, or to discharge, discriminate
or otherwise prejudice a woman on account of marriage.

6.4.5 PREGNANCY (ARTICLE 137); discharge or refuse admission

back to work account of pregnancy.

6.4.6 SPECIAL EMPLOYMENT (ARTICLE 138); women working in

nightclubs, massage parlors, cocktail lounge and similar
establishments under the effective control or supervision of the
employee for a substantial period of time shall be consider an
employee of said establishments.

6.5 EMPLOYMENT OF MINORS

6.5.1 MINIMUM EMPLOYABLE AGE (ARTICLE 139)

6.5.1.1 Below 15 years, only when child works directly for

his parents or guardians and the employment does not
interfere with his schooling.
6.5.1.2 Between 15-18 years, only at such hours and days
as determined by the Secretary of Labor
6.5.1.3 Below 18 years, cannot be employed in hazardous
or deleterious undertakings as determine by Secretary of
Labor.

6.5.2 SPECIAL PROTECTION AGAINST CHILD ABUSE (RA 7658)

6.5.2.1 GENERAL PROHIBITON: below 15 years, cannot
work in any public or private institutions.

6.5.2.2 UNDER SUPERVISION OF PARENTS: employment

does not endanger child's life, safety, health and morals;
does not impair
normal development; and, employer, parent or guardian
provides child with primary and secondary education
prescribed by DECS.
6.5.2.3 PUBLIC ENTERTAINMENT /.CINEMA / TV:
employment does not involve ads or commercials
promoting alcoholic beverages, Intoxicating drinks, tobacco
or its by-products, or exhibiting violence; written contract
approved by DOLE; conditions in 6.5.2.2 above are met.

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