Labor Law Review (2023 Bar Syllabus)

Calendar Day

24-hour period commencing at 12 midnight and ending at 11:59 p.m.

Republic Act No. 11210 (RA 11210) also known as the 105-Day Expanded Maternity Leave Law

A female Social Security System (SSS) member who has paid at least three (3) monthly contributions in the twelve (12)-month period immediately preceding the semester of her childbirth, miscarriage, or emergency termination of pregnancy shall be paid her daily maternity benefit which shall be computed based on her average monthly salary credit for one hundred five (105) days, regardless of whether she gave birth via caesarian section or natural delivery.

Explain what is meant BOSH

BOSH means Basic Occupational Safety and Health. Bosh is for safety officers in the general industries or all non-construction industries such as manufacturing, services, retail, call centers, recruitment, placement, Bpo business process outsourcing, food, hospitality, etc. Bosh is the mandatory 40 hours training for all industries (except construction and maritime) for safety officers or others whose work involves Osh.

Parental Leave for Solo Parents Under Republic Act No. 8972

Benefits granted to a solo parent to enable him/her to perform parental duties and responsibilities where physical presence is required. The parental leave, in addition to leave privileges under existing laws, shall be for seven (7) work days every year, with full pay, consisting of basic salary and mandatory allowances fixed by the Regional Wage Board, if any, provided that his/her pay shall not be less than the mandated minimum wage. (IRR of R.A. No. 8972, Sec. 6[g])

Overtime Pay

Overtime pay is the additional compensation of at least 25% on the regular wage for the service or work rendered or performed in excess of 8 hours a day by employees or labourers in employment covered by the Eight-hour Labor Law (LC, Art. 87). Overtime pay is based on regular base pay exluding money received by employee in differenct concepts such as Christmas bonus and other fringe benfits. It is computed by multiplying the overtime hourly rate by the number of hours in excess of eight.

Overtime

Overtime work is the service rendered in excess of and in addition to eight hours on ordinary working days, which are the prescribed daily work period, is overtime work (Caltex Regular Employees at Mla. Office v Caltex Phils., Inc., 247 SCRA 398).

Explain and provide all the exempted employees from the coverage of Art. 82 AND provide the basis and reason for their exemptions AND provide illustrations for each.

Persons in the personal service of another Their actual work hours cannot be determined with reasonable certainty. E.g. Personal Driver, Personal Cook, Personal Gardener, etc. This and domestic helpers are those who: 1. Perform such services in the employer's home which are usually necessary or desirable for the maintenance and enjoyment thereof; or 2. Minister to the personal comfort, convenience, or safety of the employer as well as the members of his employer's household (Sec. 2[d], Rule I, Book III, Rules Implementing the Labor Code).

How do you establish Employee Employer Relation on Bus Drivers

Persons paid on "boundary system" basis in relation to the transport operator such as jeepney drivers and conductors, taxi drivers, auto-calesa driver, and bus driver. Under the "boundary system," the relationship between the driver and conductor of a bus and the owner thereof is not that of lessee and lessor but that of employee and employer.

Necessary Work

Pertains to necessary work 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; to prevent loss or damage to perishable goods; and 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. It is compensable.

Discuss what is Republic Act No. 11641 An Act Creating The Department Of Migrant Workers, Defining Its Powers And Functions, Rationalizing The Organization And Functions Of Government Agencies Related To Overseas Employment And Labor Migration, Appropriating Funds Therefor, And For Other Purposes

Philippine President Rodrigo Roa Duterte signed into law the Republic Act (RA) No. 11641 creating the Department of Migrant Workers (DMW). A Transition Committee is mandated by the new law to facilitate the transition period until its operationalization. It is composed of the new Department's Secretary together with officials from the offices and departments of Foreign Affairs, Labor, Maritime, and Social Welfare. The law was created given the mandate of the State: to protect the rights and promote the welfare of overseas Filipino workers (OFWs) and their families; to make overseas employment a choice, not a necessity; to strengthen the domestic labor market for the effective reintegration of OFWs; and to progressively align programs and policies towards the fulfillment of the 23 Objectives of the GCM. This new Department shall cover all matters relating to OFWs, including prospective overseas workers in the Philippines and overseas workers who have returned and reintegrated back to the country.

Explain what is meant COSH?

COSH means Construction Occupational Safety and Health. Cosh is for safety officers in the construction industries such as general contractors, subcontractors, and those businesses with working at heights activities. Cosh is the mandatory 40 hours training for those in the construction industry, for safety officers or others whose work involves Osh.

Explain and provide all the exempted employees from the coverage of Art. 82 AND provide the basis and reason for their exemptions AND provide illustrations for each.

Field Personnel - Field personnel refers to non-agricultural employees who: 1. Regularly perform their duties away from the principal place of business or branch office of the employer; and 2. Whose actual hours of work in the field cannot be determined with reasonable certainty(Sec. 27, Rule II, Book III, Rules Implementing the Labor Code). They are exempted from the coverage due to the nature of their functions which requires performance of service away from the principal place of business. Hence, they are free from the personal supervision of the employer and the latter cannot determine with reasonable certainty the actual number of hours of work expended for the employer's interest. e.g. outside sales personnel, agents on commission basis, or insurance field agents (San Miguel Brewery vs Democratic Labor Union, G.R. No. L-18353, 31 July 1963); meter readers, medical representatives(Duka, Labor Laws and Social Legislation, A Barrister's Companion, 2016, p. 118).

How do you establish Employee Employer Relation on Fisherman/Fisherfolks

Fishermen-crew who rendered services in various capacities (patron/pilot, master fisherman, second fisherman, chief engineer, and fisherman) aboard the fishing vessels of a company engaged in "trawl" fishing and whose compensation was paid in cash on percent commission basis.

Shortening of work week

In situations where the employer has to reduce the number of regular working days to prevent serious losses, such as when there is a substantial slump in the demand for his goods or services or when there is lack of raw materials, the employer may deduct the wages corresponding to the days taken off from the workweek, consistent with the principle of "no work, no pay." This is without prejudice to an agreement or company policy which provides otherwise (Handbook on Workers' Statutory Monetary Benefits ,DOLE 2016 ed. page 9).

If standby is for emergency work

Meal break is part of hours worked. (Pan-American World Airways System Philippines v. Pan-American Employees Association G.R. No.L-16275, 1961)

Explain and provide all the exempted employees from the coverage of Art. 82 AND provide the basis and reason for their exemptions AND provide illustrations for each.

Members of the family of the employer who are dependent upon him for support Members of the employer dependent upon him for support include husband and wife, parents and children, and other ascendants and descendants, brothers and sisters whether full or half-blood (Art. 150, Family Code) They are exempted from the coverage, for the support given by the employer may exceed the benefit for which an employee is entitled under appropriate labor provisions. To cover them under Art.82, may create labor problems that would eventually break-up the family, which is the evil sought to be prevented (Poquiz, 2012, p. 175).

Who determines the minimum wage?

Minimum wage is set by law or wage order issued by the Regional Tripartite Wages and Productivity Boards (RTWPB's) or the rate which may be fixed by the employer provided the same is not lower than the legally mandated minimum wage for agricultural or non-agricultural workers.

Travel From Home To Work

Normal travel from home to work which is not work time. Generally, it is not compensable because it is a normal incident of employment. However, said rule provides for some exceptions: 1. Where employee made to work on an emergency call and travel is necessary in proceeding to the workplace 2. Travel is done through a conveyance provided by the employer 3. Travel is done under the supervision and control of the employer 4. Travel is done under vexing and dangerous circumstances

WHAT is the Non-Diminution of Benefits principle applicable?

Nothing in the Labor Code shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of the promulgation of the Code (LC, Art. 100). Benefits being given to Ees cannot be taken back or reduced unilaterally by theEr because the benefit has become part of the employment contract, whether written or unwritten. There is diminution of benefits when: 1. The grant or benefit is founded on a policy or has ripened into a practice over a long period of time 2. The practice is consistent and deliberate 3. The practice is not due to error in the construction or application of a doubtful or difficult question of law, and 4. The diminution or discontinuance is done unilaterally by the employer. (TSPIC v. TSPIC Employee Union, G.R. No. 163419, 2008). 5. The "benefits" refer to monetary benefits or privileges given to the employee with monetary equivalents. (Royal Plant Workers Union vs. Coca-Cola Bottlers Philippines, Inc.-Cebu Plant, G.R. 198783, 2013).

How do you establish Employee Employer Relation on TV News Anchor

Notwithstanding the nomenclature of their Talent Contracts and/or Project Assignment Forms and the terms and condition embodied therein, petitioners are regular employees of ABS-CBN. As cameramen, editors and reporters, it appears that Petitioners were subject to the control and supervision of Respondents which provided them with the equipment essential for the discharge of their functions. The exclusivity clause and prohibitions in their Talent Contract were likewise indicative of Respondents' control over them, however obliquely worded. On the issue of control and supervision over the employee's work, which is critical in determining the existence of employer-employee relationship, the justices said the company's own rules validated the employees' claim. They were required to attend and participate in all promotional campaigns of their assigned programs, and to perform their functions at the locations and in accordance with the schedules set by the company. In the tribunal's estimation, these rules and other requirements show the company exercised control not only over the results of the complainants' work but also the means employed to achieve them. For these reasons, the tribunal upheld the ruling of the NLRC that the complainants are regular employees of ABS-CBN, not independent contractors or talents, and therefore entitled to all the rights and benefits that accrue to that status. (Begino v. ABS-CBN)

How do you establish Employee Employer Relation on Salaried Insurance Agents

Salaried employees who keep definite hours and work under the control and supervision of the company. The element of control is present and his contract of services with the company is not for a piece of work nor for a definite period. (Great Pacific Life Assurance Corporation vs. Judico)

Salary

Salary denotes a higher degree of employment, or a superior grade of services, and implies a position of office and is suggestive of a larger and more important service. The word salary is understood to relate to position of office, to be the compensation given for official or other service. It is subject to execution or attachment (Gaa v. CA, G.R. No. L-44169, December 3, 1985).

Supplements

Supplements ​​are extra remunerations or benefits given to or received by laborers over and above their ordinary earnings or wages. (Atok Big Wedge Mining Co. v. Atok Big Wedge Mutual Benefit Assoc., G.R. No. L-7349, July 19, 1955).

Serrano v. Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc.

The Migrant Workers Act provides that salaries for the unexpired portion of the employent contract or three (3) months for every year of the unexpired term, whichever is less, shall be awarded to the overseas Filipino worker, in cases of illegal dismissal. In Serrano v. Gallant Maritime Services (G.R. No. 167614, March 24, 2009) however, the clause "or for three (3) months for every year of the unexpired term, whichever is less" was declared unconstitutional and awarded the entire unexpired portion of the employment contract to the overseas Filipino worker for violating the equal protection clause and the substantive due process rule in the Constitution The subject clause contains a "suspect classification" in that, in the computation of the monetary benefits of fixed-term Ees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage. The clause is a violation of the right of Serrano and other OFWs to equal protection and right to substantive due process, for it deprives him of property, consisting of monetary benefits, without any existing valid governmental purpose. Thus, Serrano is entitled to his salaries for the entire unexpired period of nine months and 23 days of his employment contract, pursuant to law and jurisprudence prior to the enactment of RA 8042 (Serrano v. Gallant Maritime Services & Marlow Navigation Co., Inc., G.R. No.167614, March 24, 2009).

What is OSHA in the Philippines?

The Occupational Safety and Health Standards Act in the Philippines is R.A. 11058. It aims to protect the health of workers in the Philippines. This important piece of legislation will aid in reducing the nation's rising cases of illnesses and workplace injuries. With the passage of RA 11058, employers are now required to adhere to occupational safety and health standards, which include, among other things, educating employees about all potential hazards at work, granting them the right to refuse unsafe work, and providing facilities and personal protective equipment.

Demand deficient unemployment

The Philippines is currently experiencing a recession. In turn, Company A, one of the dominant market players in the e-commerce sector, lost the demand for its products and experienced a financial crisis. To cut back, it had no choice but to lay off some of its workers. In effect, employment levels fall.

What are the grounds for the cancellation of registration of a contractor?

The Regional Director shall, upon a verified complaint, cancel or revoke the registration of a contractor after due process, based on any of the following grounds: (a) Misrepresentation of facts in the application; (b) Submission of a falsified or tampered application or supporting documents to the application for registration; (c) Non-submission of Service Agreement between the principal and the contractor when required to do so; (d) Non-submission of the required semi-annual report as provided in Section 22 (Semi-annual reporting) hereof; (e) Findings through arbitration that the contractor has engaged in labor-only contracting and/or the prohibited activities as provided in Section 7 (Other Prohibitions) hereof; (f) Non-compliance with labor standards and working conditions; (g) Findings of violation of Section 8 (Rights of contractor's employees) or Section 9 (Required contracts) of these Rules; (h) Non-compliance with SSS, the HDMF, Pag-Ibig, Philhealth, and ECC laws; and (i) Collecting any fees not authorized by law and other applicable rules and regulations.

Visitorial Powers of DOLE Secretary

The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violations of any provisions of this Title. (Labor Code, Art. 37)

Regulatory & Rule-Making Powers of DOLE Secretary

The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title. (Labor Code, Art. 36)

Explain exhaustively the liability coverage of RA 11058.

Under Section 21 of said law, it provides that the employer, project owner, general contractor, contractor or subcontractor, if any, and any person who manages, controls or supervises the work being undertaken shall be jointly and solidarily liable for compliance with this Act.

Article 38(a) of the LC, illegal recruitment

illegal recruitment means any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority.

RA 8042, as amended by RA 10022, illegal recruitment

illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged (RA 10022, Sec. 5).

Illegal Recruitment as Economic Sabotage

it is economic sabotage when complex illegal recruitment is committed. Illegal recruitment when committed: By a syndicate or In large scale, shall be considered an offense involving economic sabotage. (R.A. No. 10022, Sec. 5[m])

Labor Relations

it is used to denote all matters arising out of employer-employee relationship involving the concerted action on the part of the workers which is usually related with right to self-organization, collective bargaining and negotiation processes.

Wage

Wage is 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, payable by an Er to an Ee under a written or unwritten contract of employment: 1. For work done or to be done, or for services rendered or to be rendered; and, 2. Includes fair and reasonable value of board, lodging, or other facilities customarily furnished by the Er to the Ee as determined by SLE.

Labor Standards

prescribes the terms and conditions of employment as affecting wages or monetary benefits, hours of work, cost of living allowances, and occupational health, safety and welfare of the workers.

Living Wage

refers to "the amount of family income needed to provide for the family's food and non-food expenditures with sufficient allowance for savings/investments for social security so as to enable the family to live and maintain a decent standard of human existence beyond mere subsistence level, taking into account all of the family's physiological, social and other needs."

Authority

refers to a document issued by the DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity.

Underemployment

refers to a situation wherein one, despite having a job, it falls inadequate or there is a mismatch between the employment opportunities and the skills and education level of the employees. It may refer to one working in a lower capacity than one in which they are qualified.

What sub-contracting

refers to an arrangement whereby a principal agrees to farm out to a contractor the performance or completion of a specific job or work within a definite or predetermined period, regardless of whether such work is to be performed or completed within or outside the premises of the principal. (DO 174-17, Sec. 3(c))

Minimum Wage

refers to is the lowest wage rate fixed by law that an employer can pay his workers (RA 6727, Implementing Rules).

Substantial Capital

refers to paid-up capital stocks/shares of at least PHP 5 Million in the case of corporations, partnerships and cooperatives. PHP 5 Million net worth in the case of a single proprietorship (Sec. 3, [L], DOLE D.O. No. 174 S. 2017)

Unemployment

refers to the situation wherein one does not have a job or to the economic situation in which an individual who is actively searching for employment is unable to find work while

Work Week

shall hold regular office hours for eight (8) hours a day, for five (5) days a week.

Job Contracting

which refers to subcontracting where there is a sufficient substantial capital or investment in machinery, tools or equipment directly or intended to be related to the job contracted.

What is the Department of Migrant Workers Act?

​​The Department of Migrant Workers (DMW) is the executive department of the Philippine goverment tasked to protect the rights and promote the welfare of overseas Filipino workers (OFWs). The Department of Migrant Workers Act (RA 11641) took effect on February 3, 2022, wherein the DMW was created, established, and constituted. The DMW is mandated to facilitate the overseas employment and reintegration of Filipino workers, while taking into consideration the national development programs of the National Economic and Development Authority. It is also tasked to promote the empowerment and protection of OFWs through continuous training and knowledge development.

State the difference between Service Charge and TIPS?

Service Charge refers to those collected by the management from the customers while Tips are voluntary payments made by the customers to the Ees for excellent service.

When is recruitment considered SIMPLE

Simple - is committed where a licensee/non-licensee or holder/non-holder of authority undertakes either any recruitment activities defined under Article 13(b), or any prohibited practices enumerated under Section 5 of RA 10022. Simple Illegal Recruitment for Local Workers (Labor Code) 1. The person charged with the crime must have undertaken recruitment activities: a. Defined under Art. 13 (b) or b. Prohibited activities defined under Art. 34; and 2. The said person does not have a license Simple Illegal Recruitment for Migrant Workers (R.A. No. 8042, as amended by R.A. No. 10022) First type of Illegal Recruitment: 1. Person charged undertakes any recruitment activity as defined in Art.13 (b) of the Labor Code; and 2. Said person does not have a license or authority to do so.

How is SOCIAL JUSTICE animated in our society, provide concrete illustration/s.

Social justice is animated in our society by virtue of our Philippine labor and social legislation. It is seen through our employees whether locally employed or not, since they are being given protection by our country in line with the basic public policy to afford protection to labor. "Expanding social protection for Filipino migrant workers and reviewing the continued deployment of workers to countries that are high- and medium-risk and also deployment in high-risk occupations" are on of the examples. As it prescribes equality of the people, the rich and the poor are equal before laws of labor. Both are to be given equal working opportunities and shall not be based upon one's wealth or political power. Additionally, this includes expanding MSMEs', cooperatives', and overseas Filipinos' access to economic opportunities in industry and services.

Discuss extensively penalties for illegal recruitment under RA 10022?

"SEC. 7. Penalties. - "(a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less than twelve (12) years and one (1) day but not more than twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) nor more than Two million pesos (P2,000,000.00). "(b) The penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) nor more than Five million pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined therein. "Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority. "(c) Any person found guilty of any of the prohibited acts shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00). "If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported without further proceedings. "In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment/manning agency, lending institutions, training school or medical clinic."

Explain the aim and reason of RA 11058 as enunciated by Department of Labor and Employment DOLE under the Labor Code of the Philippines.

"Section 1. Declaration of Policy. - The State affirms labor as a primary social and economic force, and that a safe and healthy workforce is an integral aspect of nation building. The State shall ensure a safe and healthful workplace for all working people by affording them full protection against all hazards in their work environment. It shall ensure that the provisions of the Labor Code of the Philippines, all domestic laws, and internationally-recognized standards on occupational safety and health are being fully enforced and complied with by the employers, and it shall provide penalties for any violation thereof. The State shall protect every worker against injury, sickness or death through safe and healthful working conditions thereby assuring the conservation of valuable manpower resources and prevention of loss or damage to lives and properties consistent with national development goals, and with the State's commitment to the total development of every worker as a complete human being. The State, in protecting the safety and health of the workers, shall promote strict but dynamic, inclusive, and gender-sensitive measures in the formulation and implementation of policies and programs related to occupational safety and health."

The purpose of minimum wage law

"to set barrier below which wages may not fall, in order to develop competition on a high level of efficient rather than competition on a low level of wages." Both are socially significant to uphold the right of workers to earn a living that would enable them to provide for the basic needs of their family, while at the same time recognizing the need of employers to sustain their business or trade.

Explain the safety and Health Training requirements provided by RA 11058

(a) All safety and health personnel shall undergo the mandatory training on basic occupational safety and health for safety officers as prescribed by DOLE. (They are required to complete the DOLE-mandated basic occupational safety and health for safety officers course.) (b) All workers shall undergo the mandatory eight (8) hours safety and health seminar as required by the DOLE which shall include a portion on joint employer-employee orientation. (The necessary eight-hour safety and health course that is mandated by the DOLE for all employees must contain a section on joint employer-employee orientation) (c) All personnel engaged in the operation, erection and dismantling of equipment and scaffolds, structural erections, excavations, blasting operations, demolition, confined spaces hazardous chemicals, welding, and flame cutting shall undergo specialized instruction and training on the said activities. (All employees must receive appropriate training and instruction in the aforementioned activities.)

What are the other prohibited acts that may be considered as similar to labor-only contracting?

- When the principal farms out work to a "Cabo" - Contracting out of a job or work by reason of a strike or lockout whether actual or imminent. - Contracting out of a job or work being performed by union members and such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization as provided in Article 259 of the Labor Code, as amended. - Requiring the contractor's/subcontractor's employees to perform functions which are currently being performed by the regular employees of the principal. - Requiring the contractor's/subcontractor's employees to sign, as a precondition to employment or continued employment, an antedated resignation letter; a blank payroll; a waiver of labor standards including minimum wages and social or welfare benefits; or a quitclaim releasing the principal or contractor from liability as to payment of future claims; or require the employee to become member of a cooperative. - Repeated hiring by the contractor/subcontractor of employees under an employment contract of short duration. - Requiring employees under a contracting/subcontracting arrangement to sign a contract fixing the period of employment to a term shorter than the term of the Service Agreement, unless the contract is divisible into phases for which substantially different skills are required and this is made known to the employee at the time of engagement. - Such other practices, schemes or employment arrangements designed to circumvent the right of workers to security of tenure.

Difference, significant changes and consequential advantages of the two laws, Republic Act No. 8042 Republic Act No. 10022

1. Additional Definition of Terms 2. Deployment Policy of Migrant Workers (Allowing the deployment of OFWs only in countries where the rights of Filipino migrant workers are protected and Positive and concrete measures) 3. Indication of Certification Requirements (DFA Certification and Implementation by POEA) 4. Optional Coverage of Compulsory Insurance 5. Under Illegal Recruitment: 1. Amended Paragraphs of Section 6, RA 8042 a. Paragraph (a) Insertion of the word "acknowledge" b. Paragraph (c) "act of reprocessing worker" c. Paragraph (e) "who has formed, joined or supported, or has contracted or is supported by any union or workers' organization" d. Paragraph (k) "for any other reasons" e. Paragraph (l) "contracted worker" f. Paragraph (n) new paragraph: To allow a non-Filipino citizen to head or manage a licensed recruitment / manning agency 6. Mention of Other Prohibited Acts 7. Persons Criminally Liable for the Offenses 8. Increase of Fines and Penalties 9. Roles of OE Stakeholders 10. Membership Screening of POEA and OWWA Boards 11. Liability/Ies Of Employer And The Local Agency

Elements of Wage Distortion

1. An existing hierarchy of positions with corresponding salary rates. 2. A significant change in the salary rate of a lower pay class without a concomitant increase in the salary rate of a higher one. 3. The elimination of the distinction between the two levels. 4. The existence of the distortion in the same region of the country. (Alliance Trade unions v. NLRC, G.R. No. 140689, 2004)

Are there any exceptions to DO 174? Explain.

1. BPO/KPO. It does not contemplate to cover information-technology enabled services involving an entire or specific business process such as Business Process Outsourcing (BPO) or Knowledge Process Outsourcing (KPO) (DOLE D.O. No. 01, s. 2017). 2. Construction Industry. Licensing and exercise of regulatory powers over the construction industry is lodged with the Philippine Constructors Accreditation Board (PCAB) of the Construction Industry Authority of the Philippines (CIAP). 3. Private Security Agency. Except for the registration requirement as provided in DO No. 174, s. 2017, contracting or subcontracting arrangement in the private security industry shall be governed by DO No. 150, s. 2016. 4. Other Contractual Relationships. DO No. 174. S. 2016 does not contemplate to cover contractual relationship such as in contract of sale or purchase, contract of lease, contract of carriage, contract growing/growership agreement, toll manufacturing, contract of management, operation and maintenance and such other contracts governed by the Civil Code and special laws.

Brownouts/ Work Interruptions

1. Brownouts of short duration but not exceeding 20 minutes shall be treated as worked or compensable hours whether used productively by the employees or not; (DOLE Policy Instruction No. 36, May 1978). 2. Brownouts running for more than 20 minutes may not be treated as hours worked provided that any of the following conditions are present: A. The employees can leave their workplace or go elsewhere whether within or without the work premises; or B. The employees can use the time effectively for their own interest (Durabuilt Recapping Plant v. NLRC, G.R. No. 76746, 27 July 1987).

How do you correct Wage Distortion in an Organized Establishment?

1. Employer and union shall negotiate to correct the distortion 2. Any dispute arising should be resolved through grievance procedure under CBA 3. If dispute remains unresolved, through voluntary arbitration (Labor Code, Art. 124)

What are the conventional test's in determining the existence of employer employee relationship?

1. Four-Fold Test or Economic Reality Test 2. The "whole economic activity or totality of economic circumstances" test 3. Two-Tiered Test (Francisco Doctrine) A. Control Test B. Economic Dependence Test

State the different kinds of sub-contracting.

1. Labor-Only Contracting 2. In-House Agency 3. Job Contracting

Examples of Facilites

1. Medical treatment to dependents 2. Rice ration 3. Housing 4. Meals or snacks 5. Fuel Reason: they are of benefit to the employee and his family.

Requirements for deducting value of facilities:

1. Proof must be shown that such facilities are customarily furnished by the trade 2. The provision of deductible facilities must be voluntarily accepted in writing by the employee 3. The facilities must be charged at fair and reasonable value. (SLL International Cable Specialists v. NLRC, G.R. No. 172161, 2011). Note: As regards meals and snacks, the employer may deduct from the wages not more than 70% of the value of the meals and snacks enjoyed by the employees, provided that such deduction is authorized in writing by the employees. The remaining 30% of the value has to be subsidized by the employer. (IRR Labor Code, Sec. 1, Rule VII-A, Book III)

Available rights of Employees under RA 11058

1. Right to Know - All workers shall be appropriately informed by the employer about all types of hazards in the workplace, and be provided access to training, education, and orientation on safety and risks. 2. Right to Refuse Unsafe Work - The worker has the right to refuse work without threat or reprisal from the employer if an imminent danger situation exists. 3. Right to Report Accidents - Workers and their representatives shall have the right to report accidents, dangerous occurrences, and hazards to the employer, to DOLE, and other concerned government agencies. They shall be free from any form of retaliation for reporting an accident. 4. Right to Personal Protective Equipment (PPE) - Employers shall provide workers PPE for any part of the body that may be exposed to hazards; a lifeline, safety belt, or harness; and respirators, masks, or shields when necessary. This should be free of charge.

Payment through ATM

1. The ATM system of payment is with the written Consent of the employees concerned; 2. The employees are given reasonable Time to withdraw their wages from the bank facility which time, if done during working hours, shall be considered compensable hours worked; 3. The system shall Allow workers to receive their wages within the period or frequency and in the amount prescribed under the Labor Code; 4. There is a bank or ATM facility within a Radius of one (1) kilometer to the place of work; 5. Upon request of the concerned employee/s, the employer shall issue a Record of payment of wages, benefits and deductions for a particular period; 6. There shall be no additional expenses and no Diminution of benefits and privileges as a result of the ATM system of payment; 7. The employer shall assume Responsibility in case the wage protection provisions of law and regulations are not complied with under the arrangement (DOLE's Explanatory Bulletin on Wage Payment Through ATM Facility, November 25, 1996)

A person is considered engaged in legitimate job contracting or subcontracting if the following conditions concur:

1. The contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility according to its own manner and method, and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof; 2. The contractor or subcontractor has substantial capital or investment; and 3. The Service Agreement ensures compliance with all the rights and benefits for all the employees of the contractor or subcontractor under the labor laws (D.O. No. 174, Sec. 8, s. 2017).

State exhaustively the prohibitions of illegal subcontracting

1. The contractor or subcontractor does not have substantial capital, 2. The contractor or subcontractor does not have investments in the form of tools, equipment, machineries, supervision, work premises, among others, and 3. The contractor's or subcontractor's employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal (Sasan v. NLRC, G.R. No. 176240, October 17, 2008); or 4. The contractor or subcontractor does not exercise the right to control over the performance of the work of the employee

Shortened meal breaks upon the employee's request are NOT compensable, provided that:

1. The employees voluntarily agree in writing to a shortened meal period of 30 minutes 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" in the morning and afternoon. 4. The value of the benefits derived by the employees from the proposed work arrangement is equal to or commensurate with the compensation due them for the shortened meal period as well as the overtime pay for 30 minutes as determined by the employees concerned; 5. The overtime pay of the employees will become due and demandable if ever they are permitted or made beyond 4:30pm; and 6. The effectivity of the proposed working time arrangement shall be of temporary duration as determined by the Secretary of Labor (2004 BWC Manual on Labor Standards).

How do you correct Wage Distortion in an Unorganized Establishment?

1. The employer and employees shall endeavor to correct the distortion 2. Any dispute shall be settled through National Conciliation and Mediation Board (NCMB) 3. If remains unresolved after 10 days of conciliation, it shall be referred to the NLRC (Labor Code, Art. 124) Note: Any issue involving wage distortion is not a valid ground for a strike or a lockout. (Ilaw at Buklod ng Manggagawa, G.R. No. 91980, 1991)

Elements of Illegal Recruitment

1. The offender is a licensee/non-licensee or holder/non-holder of authority engaged in the recruitment and placement of workers; and 2. The offender undertakes: a. Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not [LC, Art. 13(b); R.A. 8042 as amended by R.A. 10022]; or b. Any prohibited practices enumerated (People vs. Sadiosa, GR 107084, May 15, 1998; RA 8042, Sec. 10) under Section 5 of RA 10022 (LC, Art. 34; RA 8042, Sec. 5, as amended by RA 10022).

Examples of Suplements

1. Vacation leave pay 2. Overtime pay in excess of the legal rate 3. Sick pension 4. Retirement and death benefits 5. Christmas bonus Reason: these are extra remunerations or benefits given to or received by laborers over and above their ordinary earnings or wages.

The employer cannot pay his workers by means of any of the following:

1. Vouchers; 2. Promissory notes; 3. Any object other than legal tender; 4. Coupons; 5. Chits; 6. Tokens; or 7. Tickets (Labor Code, Art. 102)

Meal period of not less than 20 minutes in the following cases are compensable hours worked

1. Where the work is non-manual work in nature or does not involve strenuous physical exertion; 2. Where the establishment regularly operates not less than 16 hours a day; 3. In case of actual or impending emergencies or there is urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer; and 4. Where the work is necessary to prevent serious loss of perishable goods (IRR Labor Code, Book III, Rule 1, Sec. 7)

How is Bonus different from 13th month pay?

A Christmas bonus is money provided to an employee in excess of what the law mandates as a reward or incentive for their success, as opposed to the 13th month salary, which is a requirement that is enforced by Philippine law.

What is the effect of cancellation of the contractor's registration?

A final Order of cancellation shall divest the contractor of its legitimate status to engage in contracting/subcontracting. Such Order of cancellation shall be a ground to deny an application for renewal of registration to a contractor under the Rules. The cancellation of the registration of the contractor for engaging in labor-only contracting or for violation of any of the provisions of these Rules involving a particular Service Agreement will not, however, impair the validity of existing legitimate job-contracting arrangements the contractor may have entered into with other principals prior to the cancellation of its registration. Any valid and subsisting Service Agreement shall be respected until its expiration; thereafter, contracting with a delisted contractor shall make the principal direct employer of all employees under the Service Agreement pursuant to Articles 106 and 109 of the Labor Code.

How much is the fine if one is found guilty in illegal recruitment?

A fine of not less than One million pesos (P1,000,000.00) nor more than Two million pesos (P2,000,000.00). A fine of not less than Two million pesos (P2,000,000.00) nor more than Five million pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as defined therein. Any person found guilty of any of the prohibited acts shall suffer a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00).

How do you establish Employee Employer Relation on Radio News Anchor/Commentator

A radio broadcast specialist who works under minimal supervision is an independent contractor. SONZAs work as television and radio program host required special skills and talent, which SONZA admittedly possesses. The records do not show that ABS-CBN exercised any supervision and control over how SONZA utilized his skills and talent in his shows. (Sonza v. ABS-CBN)

Explain the principles in determining hours worked?

A. All hours are hours worked which the employee is required to give to his employer, regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion. B. 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 the workplace. C. If the work performed was necessary or it benefited the employer, or the employee could not abandon his work at the end of his normal working hours because he had no replacement, all time spent or such work shall be considered as hours worked, if the work was with the knowledge of his employer or immediate supervisor. D. The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either if: 1. The imminence of the resumption of work requires the employee's presence at the place of work; or 2. The interval is too brief to be utilized effectively and gainfully in the employee's own interest. (IRR of Labor Code, Sec. 4, Book III, Rule I)

Provide the recognized other illicit forms of employment or contractual arrangements.

A. When the principal farms out work to a "Cabo". "Cabo" refers to a person or group of persons or to a labor group which, under the guise of labor organization, cooperative, or any entity, supplies workers to an employer, with or without any monetary or other consideration, whether in the capacity of agent of the employer or as ostensible independent contractor. (D.O. No. 174-17, Sec. 3[b]) B. Contracting out of job or work through an in-house agency. C. Contracting out of job or work through an in-house cooperative which merely supplies workers to the principal. D. Contracting out of a job or work by reason of a strike or lockout whether actual or imminent. E. Contracting out of a job or work being performed by union members and such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization as provided in Article 259 of the Labor Code, as amended F. Requiring the contractor's/subcontractor's employees to perform functions which are currently being performed by the regular employees of the principal. G. Requiring the contractor's/subcontractor's employees to sign, as a precondition to employment or continued employment, an antedated resignation letter; a blank payroll; a waiver of labor standards including minimum wages and social or welfare benefits; or a quitclaim releasing the principal or contractor from liability as to payment of future claims; or require the employee to become member of a cooperative. H. Repeated hiring by the contractor/subcontractor of employees under an employment contract of short duration. I. Requiring employees under a contracting/subcontracting arrangement to sign a contract fixing the period of employment to a term shorter than the term of the Service Agreement, unless the contract is divisible into phases for which substantially different skills are required and this is made known to the employee at the time of engagement. J. Such other practices, schemes or employment arrangements designed to circumvent the right of workers to security of tenure. (D.O. No. 174-17, Sec. 6)

Work

An activity involving mental or physical effort done in order to achieve a purpose or result, especially for wages or a salary

Labor-Only Contracting

An arrangement where the contractor or subcontractor recruits, supplies, or places workers to perform a job or work for a principal, and the elements hereunder: A. The contractor does not have substantial capital or the contractor or subcontractor does not have investments in the form of tools, equipment, machineries; and the contractor's or subcontractor's employees recruited and placed are performing activities which are directly related to the main business operation of the principal; or B. The contractor or subcontractor does not exercise the right of control over the work of the employee (D.O. No. 174-17, Sec. 5)

What is recruitment?

Any act of canvassing, enlisting, transporting, contracting, hiring, utilizing, or procuring workers and includes contact services, referrals, advertising or promising for employment, locally or abroad, whether for profit or not [LC, Art. 13(b)] 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. (Labor Code, Art. 13[b])

Special Leave Benefits for Women under Republic Act No. 9710 (The Magna Carta Of Women Act)

Any female employee, regardless of age and civil status shall be entitled to a special leave of two (2) months with full pay based on her gross monthly compensation subject to existing laws, rules and regulations due to surgery caused by gynecological disorders under such terms and conditions: 1. She has rendered at least six (6) months continuous aggregate employment service for the last twelve (12) months prior to surgery; 2. In the event that an extended leave is necessary, the female employee may use her earned leave credits; and 3. This special leave shall be non-cumulative and nonconvertible to cash.

What is the effect of labor-only contracting?

Any finding of labor-only contracting shall render the principal jointly and severally liable with the contractor to the latter's employees, in the same manner and extent that the principal is liable to employees directly hired by him/her. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. Also, a finding of labor-only contracting shall be a ground for the cancellation of registration as legitimate job contractor with the DOLE. If the labor-only contracting activity is undertaken by a legitimate labor organization, a petition for cancellation of union registration may be filed against it.

Employee

Any person in the employ of an employer. It shall not be limited to the employees of a particular employer. It includes any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.

People of the Philippines vs. Teresita "Tessie" Laogo

Appellant, along with a certain Susan Navarro, were found guilty of illegal recruitment. It was found that Navarro met the complainants in a town fiesta. Navarro invited the complainants into her house where she introduced them to appellant. Each of the complainants were told that Navarro would be able to help them secure employment abroad. The complainants then paid differing amounts to Navarro as placement fees, and were issued receipts bearing the logo of Laogo Travel Consultancy, the company of appellant. Complainants eventually found out that appellant and Navarro were not registered with the DOLE as a recruitment agency. Appellant was found guilty by the RTC, and her conviction was affirmed by the Court of Appeals. Appellant now challenges her conviction, contending that she was not affiliated with Navarro, and that her business involves the processing of visas. She was doing the same for the complainants, and was not, in any way, affiliated with Navarro. The lower and appellate courts found that the transaction entered into by the complainants an appellant were followed up through appellant office. Also, the receipts issued to the complainants were from appellant company. The fact that she eventually changed the company name in an attempt to dissociate herself from Navarro deserves scant consideration. Appellant engaged in recruitment activities when she promised complainants employment abroad in exchange for consideration. She is guilty of illegal recruitment as she was unlicensed to undertake said act. It is important that there must at least be a promise or offer of an employment from the person posing as a recruiter, whether locally or abroad (People v. Laogo, G.R. no. 176264, January 10, 2011).

How do you establish Employee Employer Relation on Employees hired under WFH

Applying the control test: (a) Selection and engagement of employee (b) Payment of wages (c) Power of dismissal (d) Power of controlDespite working remotely, if the employer has control and power over the employee.

Explain the principle followed in the construction of labor laws.

Article 4 of the Labor Code mandates that all doubts in the implementation and interpretation of the provisions thereof shall be resolved in favor of labor. Consistent with the State's avowed policy to afford protection to labor, as Article 3 of the Labor Code and Section 3, Article XIII of the 1987 Constitution have enunciated, particularly in relation to the worker's security of tenure, the Court held that "[t]o be lawful, the cause for termination must be a serious and grave malfeasance to justify the deprivation of a means of livelihood. This is merely in keeping with the spirit of our Constitution and laws which lean over backwards in favor of the working class, and mandate that every doubt must be resolved in their favor." (Hocheng Philippines Corporation vs. Farrales)

Provide the recognized principles in compensating employees for work done on their rest day, Holidays or on a Sunday?

Article 93 of the Labor Code provides that 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. 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. 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. 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.

Provide all the constitutional provisions related to labor and explain its connection and significance to labor law.

Article II: State Policies Sec. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. Sec. 10. The State shall promote social justice in all phases of national development. Sec. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Sec. 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments. The above-mentioned constitutional provisions under Article II are clearly in support of labor and in the promotion of social justice. These provisions are used as guidelines which shed understanding for all departments of the government. Nevertheless, these provisions are not self-executing provisions ready for enforcement through courts. Hence, there must be a law enforcing the said provisions.

Provide all the constitutional provisions related to labor and explain its connection and significance to labor law.

Article III: Bill Of Rights Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Sec. 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. Sec. 18(2). No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. Under the Labor Code, the requirements for the lawful dismissal of an employee by his employer are two-fold: the substantive and the procedural. Not only must the dismissal be for a valid or authorized cause as provided by law, but the rudimentary requirements of due process, basic to which are that an opportunity to be heard and to defend oneself must be observed before an employee may be dismissed. One's employment is a property right, and the wrongful interference therewith is an actionable wrong. The right is considered to be property within the protection of the constitutional guarantee of due process of law.

Provide all the constitutional provisions related to labor and explain its connection and significance to labor law.

Article XIII: Social Justice And Human Rights Sec. 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. Sec 13. The State shall establish a special agency for disabled person for their rehabilitation, self-development, and self-reliance, and their integration into the mainstream of society. Sec. 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. The presumption is that the employer and the employee are on unequal footing, so the State has the responsibility to protect the employee. This presumption, however, must be taken on a case-to-case basis. In situations where special qualifications are required for employment, such as a Master's degree, prospective employees are at a better position to bargain with the employer. Employees with special qualifications would be on equal footing with their employers, and thus, would need a lesser degree of protection from the State than an ordinary rank-and-file worker. While labor laws should be construed liberally in favor of labor, we must be able to balance this with the equally important right of the employer to due process.

Explain the concept in labor law of "NON DIMUNITION OF BENEFITS"

As a general rule, nothing in the Labor Code shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of the promulgation of the Code (LC, Art. 100). Benefits being given to employees cannot be taken back or reduced unilaterally by the Er because the benefit has become part of the employment contract, whether written or unwritten. However, said general rule provides for some exceptions: 1. Correction of error 2. Contingent benefit or conditional bonus 3. Wage order compliance 4. Benefits on reimbursement basis 5. Reclassification of position 6. Negotiated benefits 7. Productivity incentives

Lectures, Meetings, Training Programs

Attendance at lectures, meetings, trainings programs and similar activities need not be counted as working time if the following criteria are met: 1. Attendance is outside of the employee's regular working hours; 2. Attendance is in fact voluntary; 3. The employee does not perform any productive work during such attendance (Sec. 6, Rule I, Book III, Rules Implementing the Labor Code).

PEOPLE OF THE PHILIPPINES v. MELISSA CHUA

Complainants Alberto A. Aglanao, Rey P. Tajadao, Billy R. Danan and Roylan Ursulum filed acomplaint for illegal recruitment, in large scale, against Melissa Chua for allegedly promising todeploy them as factory workers in Taiwan.They were assured that the earlier they pay the appropriate placement fees, the earlier they canbe deployed abroad.The complainants, on different occasions, paid Chua a placement fee in the amount of P80,000.00and underwent medical examinations.Even after completing all the requirements and several follow-up with Chua, on separateincidents, none of the complainants was deployed in Taiwan.Eventually they learned that Chua was not licensed to recruit workers for overseas employment.On her defense, Chua denied having recruited the complainants and interposed the defense thatshe was only a cashier at Golden Gate Office and that she has no knowledge of whether theagency was licensed to recruit workers during her tenure as it has been delisted. Inarguably, appellant Chua engaged in recruitment when she represented to private complainantsthat she could send them to Taiwan as factory workers upon submission of the requireddocuments and payment of the placement fee. The four private complainants positively identifiedappellant as the person who promised them employment as factory workers in Taiwan for a fee of ₱ 80,000. More importantly, Severino Maranan the Senior Labor Employment Officer of the POEA, presented a Certification dated December 5, 2002, issued by Director Felicitas Q. Bay, tothe effect that appellant Chua is not licensed by the POEA to recruit workers for overseasemployment. Appellant cannot escape liability by conveniently limiting her participation as a cashier of GoldenGate. The provisions of Article 13(b) of the Labor Code and Section 6 of R.A. No. 8042 areunequivocal that illegal recruitment may or may not be for profit. It is immaterial, therefore,whether appellant remitted the placement fees to "the agency's treasurer" or appropriated them. The same provision likewise provides that the persons criminally liable for illegal recruitment arethe principals, accomplices and accessories. Just the same, therefore, appellant can be held liableas a principal by direct participation since she personally undertook the recruitment of privatecomplainants without a license or authority to do so. Worth stressing, the Migrant Workers andOverseas Filipinos Act of 1995 is a special law, a violation of which is malum prohibitum, not malain se. Intent is thus, immaterial and mere commission of the prohibited act is punishable.

What are the mandatory requirements to effectuate a compressed work week?

Conditions where a "compressed workweek" schedule may be legally authorized as an exception to the "8-hour a day" requirement under the LC: 1. The Ee voluntarily agrees to it 2. There is no diminution in their weekly or monthly take home pay or fringe benefits 3. The benefits are more than or at least commensurate or equal to what is due to the Ees without the compressed work week 4. OT pay will be due and demandable when they are required to work on those days which should have ceased to be working days because of the compressed work week schedule. 5. No strenuous physical exertion or that they are given adequate rest periods. 6. It must be for a temporary duration as determined by the DOLE.

Explain and provide all the exempted employees from the coverage of Art. 82 AND provide the basis and reason for their exemptions AND provide illustrations for each.

Domestic helpers They are not covered by this Title because terms and conditions of employment are governed by the provisions of R.A. 10361 (Kasambahay Law). e.g. Nannies, House Maids or "Yaya", General Househelp etc.

What is your understanding of DOUBLE HOLIDAY PAY? Explain with legal basis and illustrate.

Double holiday pay means that there are 2 regular holidays falling on the same day. If two regular holidays fall on the same day (such as Good Friday falling on Araw ng Kagitingan [April 9]), the employees should be paid 400% of the basic wage for both holidays provided he worked on that day or was on leave of absence with pay or was on authorized absence on the day prior to the regular holiday.

Voluntary unemployment

Employee A, despite having a big amount of workload, is receiving pay that he feels is not financially compelling. Thus, forcing himself to leave the company.

Structural unemployment

Employee A, who is a manufacturing employee used to do manual labor in creating bags for company A. However, due to recent technological advances, Company A improved its bag-making process to make us of technology. Employee A, despite having the knowledge to manually produce bags, no longer possesses the right technological skills since the requirement of the job changed thus, leaving him unemployed.

Frictional unemployment

Employee A, who used to work at Company A, recently resigned from her position due to the toxicity of the working environment as well as the huge amount of workload. Thus, Employee A is currently unemployed, but is already looking for a job and is attending job interviews.

Equal Pay for Equal Work Principle

Employees holding the same position and rank are presumed to be performing equal work. The rule equal pay for equal work applies whether the employee is hired locally or abroad (ISAE v. Quisumbing) The rule on wages applies to ALL workers. EXCEPT: 1. Farm tenancy / leasehold 2. Domestic service 3. Persons working in their respective homes in needle work or in any Cottage industry duly registered in accordance with law 4. Barangay micro business enterprise (BMBE) under RA 9178, the BMBE Law. 5. Cooperatives. 6. Homeworkers employed in any establishment duly registered with the National Cottage Industries and Development Authority in accordance with RA 8470 7. Retail and service establishments regularly employing not more than 10 workers

Provide the recognized Duties of Employers

Employer's Duties: To provide a safe and healthy workplace through the following, among others: 1. Provide a place of employment for workers which is free from hazardous conditions that are causing or are likely to cause death, illness, or physical harm to the workers. 2. Provide complete job safety instruction and proper orientation to all workers, including those relating to familiarization with their work environment. 3. Ensure that chemical, physical, and biological substances and agents and ergonomic and psychosocial stressors do not pose a risk to health. 4. Use only approved specific industry set of standards of devices and equipment for the workplace. 5. Comply with OSH standards: training, medical examination, provisions on protective and safety devices (e.g. PPE and machine guards). Training for workers includes health promotion, hazards associated with their work, health risks involved or to which they are exposed to, preventive measures to eliminate or minimize risks, steps to be taken in cases of emergency, and safety instruction for the jobs, activities, and tasks to be handled by workers. 6. Involve workers in the process of organizing, planning, implementing, monitoring, and evaluating the OSH management system. 7. Provide for trainings and drills, evacuation plans, etc., to deal with emergencies, fires, and accidents including first-aid arrangements. 8. Comply with all reportorial requirements of the OSH standards. 9. Register establishment to DOLE (Department of Labor and Employment). 10. Install safety signage and devices in prominent positions and strategic locations, in a language understandable to all, and in accordance with OSH standards on sign colors, to warn workers and the public of hazards in the workplace 11. Have workers undergo appropriate training and certification as a requirement before the use of heavy duty equipment. 12. Is liable for complying with OSH standards, including the penalties imposed for violations. 13. In the case of a stoppage of work due to imminent danger as a result of the employer's fault, the affected workers must still be paid their corresponding wages during the period of suspension of operations.

What are the exceptions to the Non-Diminution Principle or Rule?

Exceptions 1. Correction of error 2. Contingent benefit or conditional bonus 3. Wage order compliance 4. Benefits on reimbursement basis 5. Reclassification of position 6. Negotiated benefits 7. Productivity incentives

Facilites

Facilities include those articles or services of benefit to the employee and his family (Atok Big Wedge Mutual Benefit Assn. v Atok Big Wedge Mining Co., 97 Phil. 294; Mayon Hotel v. Adana, G.R. No. 157634, 16 May 2005).

Factors in determining minimum wage?

Factors to Consider: 1. Improvements in Standards of living 2. The Needs of workers and their families 3. Wage Adjustment vis-à-vis the consumer price index 4. The Prevailing wage levels 5. Effects on employment generation and family income 6. The Cost of living and changes or increases 7. Fair Return of the capital invested and capacity to pay of employers 8. The need to induce Industries to invest in the countryside 9. The Equitable distribution of income and wealth along the imperatives of economic and social development 10. The Demand

Management Prerogative

General Rule: An employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers and the discipline, dismissal and recall of workers Limits to Management Prerogative: 1. Good Faith 2. Grave abuse of discretion 3. Law 4. Collective bargaining 5. Equity and/or Substantial Justice

As to mode or time of payment.

General Rule: At least once every 2 weeks or twice a month at intervals not exceeding 16 days. Exceptions: 1. In case of force majeure or other circumstances beyond the employer's control, payment must be made immediately after such occurrence has ceased; and 2. In case of payment of wages by result involving work which cannot be completed in two weeks and in the absence of CBA or arbitration award: - Payments are made at intervals not exceeding 16 days, in proportion to the amount of work completed; and - Final settlement is made upon completion of the work. (IRR Labor Code, Sec. 3, Rule VIII, Book III) In ALL Cases: No employer shall make payment with less frequency than once a month. If on account of force majeure or circumstances beyond the employer's control, payment of wages on or within the time herein provided cannot be made, the employer shall pay the wages immediately after such force majeure or circumstances have ceased.

Is bonus a demandable right?

General Rule: Bonus is not demandable as a matter of right. It is a management prerogative, given in addition to what is ordinarily received by or strictly due to the recipient (Producers Bank v. NLRC, G.R. No. 100701, 2001) Exceptions: 1. Given without any condition; hence, part of the wage or salary (Atok Big Wedge Mining Co., Inc. v. Atok Big Wedge Mutual Benefit Assn., 92 Phil. 754) 2. Grant thereof is a result of an agreement such as the CBA (Gery v. Insular Lumber, 93 Phil. 807) 3. Given on account of company policy or practice (Claparols v. CIR, 65 SCRA 613) 4. Grant is mandated by law.

No work No Pay Principle

General Rule: If there is no work performed by the employee, there can be no wage or pay. Exception: Unless the laborer was able, willing and ready to work but was prevented by management or was illegally locked out, suspended or dismissed.

As to Form of wages.

General Rule: No employer shall pay the wages of an employee by any other means other than legal tender, even when expressly requested by the employee. (Congson v. NLRC, G.R. No. 114250, April 5, 1995) Exception: Payment of wages by bank checks, postal checks or money orders is allowed where: 1. Such manner of wage payment is customary on the date of the Labor Code's effectivity; 2. It is stipulated in a collective agreement; 3. All of the following conditions are met; or a. There is a bank or other facility for encashment within a radius of 1 kilometer from the workplace b. The employer or any of his agents or representatives does not receive any pecuniary benefit directly or indirectly from the arrangement c. The employees are given reasonable time during banking hours to withdraw their wages from the bank which time shall be considered as compensable hours worked if done during working hours d. The payment by check is with the written consent of the employees concerned if there is no collective agreement authorizing the payment of wages by bank checks 4. Necessary because of special circumstances as specified in appropriate regulations issued by the Secretary of Labor (IRR Labor Code, Sec. 2, Rule VIII, Book III)

As to place or Venue of payment.

General Rule: Payment of wages shall be made at or near the place of undertaking Exceptions: Payment in a place other than the work place shall be permissible only under the following circumstances: 1. When payment cannot be effected at or near the place of work by reason of the deterioration of peace and order conditions, or by reason of actual or impending emergencies caused by fire, flood, epidemic or other calamity rendering payment thereat impossible 2. When the employer provides free transportation to the employees back and forth 3. Under any other analogous circumstances; Provided, That the time spent by the employees in collecting their wages shall be considered as compensable hours worked (Labor Code, Art. 103; IRR Labor Code, Sec. 4, Rule VIII, Book III)

Fair Days Wage For a Far Day's Labor

General Rule: The age-old rule governing the relation between labor and capital or management and employee is that a "fair day's wage for a fair day's labor." It is hardly fair or just for an employee or laborer to fight or litigate against his employer on the employer's time. Exception: Where the employer was able, willing, and ready to work but was prevented by management or was illegally locked out, suspended or dismissed, or otherwise illegally prevented from working BUT: Where the failure of employees to work was not due to the employer's fault, the burden of economic loss suffered by the employees should not be shifted to the employer. Each party must bear his own loss.

As to whom payment of wages is undertaken.

General Rule:Wages shall be paid directly to the workers to whom they are due (Labor Code, Art. 105) Exceptions: 1. Payment through another person (a) In cases of force majeure rendering such payment impossible or under other special circumstances to be determined by the Secretary - the worker may be paid through another person under written authority given by the worker for the purpose (Labor Code, Art. 105[a]); or (b) When authorized under existing law, including: Payments for the insurance premiums of the employee ii. Union dues where the right to check-off has been recognized by the employer in accordance with a collective agreement iii. Authorized in writing by the individual employees concerned (IRR of Labor Code, Sec. 5[b], Rule VIII)

Explain thoroughly how employer-employee relationship is established?

Generally, employee employee relationship is created by an employment contract whether express or implied. Such contract may be shown to exist by proof of hire by competent person, either by the employer himself or to an authorized representative or agent. (Asia Steel Corp vs. WCC, 27 June 1965) But to further determine the existence of an employer-employee relationship, four elements generally need to be considered, namely: 1. The selection and engagement of the employee; 2. The payment of wages; 3. The power of dismissal; and 4. The power to control the employee's conduct. The benchmark "reality" for the existence of an employer-employee relationship is economic dependence of the worker on his employer. "Economic dependence" is whether the worker is dependent on the employer for his continued employment. (Wilhelmina Orozco v. Court of Appeals, G.R. No. 155207, 13 August 2008)

Explain and provide all the exempted employees from the coverage of Art. 82 AND provide the basis and reason for their exemptions AND provide illustrations for each.

Government employees - Those which are employed by the National Government or any of its political subdivisions, including those employed in government-owned and/or controlled corporations with original charters or created under special laws. They are exempted because the terms and conditions of their employment are governed by the Civil Service Decree, and not the Labor Code.

What is the legal consequence of a declared A SPECIAL WORKING HOLIDAY to a government employee? To a privately engaged employee?

Government employees including those employed and government-owned or controlled corporations with original charters are mandated to go to work since offices are open on such days and there is no additional pay on workers who will report to work. To a privately engaged employee, for work performed, an employee is entitled only to his basic rate. No premium pay is required since work performed on said days is considered work on ordinary working days.

What is the legal consequence of a declared A SPECIAL NON-WORKING HOLIDAY to a government employee? To a privately engaged employee?

Government employees including those employed and government-owned or controlled corporations with original charters are not entitled to holiday pay. Thus, they will not be required to go to work. To a privately engaged employee, they are not compensated if unworked unless there is a favourable company policy, practice or CBA granting payment of wages on special days even if unworked. However, they still have the option to work and get paid an additional 30% of daily wage rate of 100% for the first 8 hours and an hourly rate of the basic daily wage x 130% x 130% x no. of hours worked if exceeds 8 hours.

Explain new tax obligation rate under train law for 2018 onwards on 13th month pay and bonuses?

If the value of the 13th Month Pay benefit combined with any other allowances or benefits that the employee receives from the employer during a calendar year, does not exceed ₱90,000, then the total value of those benefits/allowances will be exempt from income tax. However, if the value of any such benefits or allowances, including the 13th Month Pay benefit, is actually in excess of ₱90,000, the employee will still receive the exemption in relation to the ₱90,000, but the amount that is in excess of that will be subject to income tax.

Explain the Philippine OSH standard? How would this affect local Employers and Employees?

In Philippines' OSH standard, each workplace must have an OSH Committee to oversee the overall management of the OSH Program. An OSH Officer must be present in a workplace at all times to ensure the enforcement of the OSH Program. The DOLE requires all safety and health personnel to undergo mandatory training on basic OSH for safety officers. It also requires all workers to undergo the mandatory 8-hour safety and health seminar that must have a joint employer-employee orientation. Local employers and employees are affected because there are certain duties that will be imposed unto them but at the same time, it allows for a safe and effective working environment for both employers and employees.

Do Employees who undertook a compressed work week scheme, entitled to additional compensation? When will additional compensation set in as a matter of law?

In a compress work week scheme, the normal workday is increased to more than 8 hours but not to exceed 12 hours, without corresponding overtime premium. The benefits are more than or at least commensurate or equal to what is due to the Ees without the compressed work week. OT pay will be due and demandable when they are required to work on those days which should have ceased to be working days because of the compressed work week schedule.

What are the remedies available to a migrant worker whose contract was pre-terminated, for a cause and without a cause?

In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deduction from the migrant worker's salary, the worker shall be entitled to the full reimbursement of his placement fee with interest of twelve per cent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or three (3) months for every year of the unexpired term, whichever is less.

Explain exhaustively the concept of WAITING TO BE ENGAGED from ENGAGED TO WAIT.

In engaged to wait, waiting is an integral part of the job; the time spent waiting is compensable, while in waiting to be engaged, idle time is not working time; it is not compensable.

Explain the individual and collective rights of employees under existing Philippine Laws.

Individual Rights - Right to security of tenure - Right to regular working hours - Right to regular working days - Right to regular meal period - Right to weekly rest periods - Right to overtime work pay - Right to night-shift differential pay - Right to compensation for holiday work - Right to additional compensation on scheduled rest day, Sunday or special work holiday - Right to service incentive leave - Right to a share in the collective service charge Collective Rights - Right to self-organization - Right to engage in collective bargaining - Right to participate in policy and decision-making processes - Right to engage in peaceful concerted activities including strike

How do you establish Employee Employer Relation on Barbers

Initially, petitioners, as new owners of the barbershop, hired private respondent as barber by absorbing the latter in their employ. The services performed by the barber are related to, and in the pursuit of the principal business activity of the owner of the barbershop. Certainly, the owner has the power to dismiss the barber, being the one who engaged the services of the latter. (Jo vs. NLRC)

Explain the Two-tiered test or multi-factor test?

It composes the first tier which is the control test (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 the second tier which is the economic reality test or also known as the economic dependence test (the underlying economic realities of the activity or relationship) The 2-tiered test provides a framework of analysis that would take into consideration the totality of circumstances surrounding the true nature of the relationship between the parties. It is appropriate in a case where there is: A. No written agreement or terms of reference to base the relationship on; and B. There exists a complexity in the relationship based on the various positions and responsibilities given to the worker over the period of the latter's employment.

Are resigned or separated/terminated employees entitled to 13th month pay? How much is the 13th month pay of a resigned or separated/ terminated employee? Explain with legal basis

It depends. If resigned or separated from work before the time of payment of 13th month pay, entitled to monetary benefits in proportion to the length of time he started working during the calendar year up to the time of resignation or termination of service (Pro-rated 13th month pay) (Section 6, DOLE Revised Guidelines on 13th Month Pay). Pro-ration of 13th month pay applies only in cases of resignation or separation from work; computation should be based on length of service and not on the actual wage earned by the worker (Honda Phils. v. Samahan ng Manggagawasa Honda, G.R. No. 145561, June 15, 2005).

Voluntary unemployment

It happens when a worker decides to leave a job because it is no longer financially compelling.

Structrual unemployment

It happens when the skills set of a worker does not match the skills demanded by the jobs available, or alternatively when workers are available but are unable to reach the geographical location of the jobs.

Discuss exhaustively SERVICE INCENTIVE LEAVE.

It is 5-days leave with pay for every employee who has rendered at least 1 year of service whether continuous or broken. Leave pay means an employee gets paid despite absence from work. The stipulation in the contract for the allowance of a vacation to employees is merely a recognition by management and labor that a short interval of complete rest and relaxation from daily routine with the benefit of full pay is essential to the mental and physical well-being of the workmen.

Explain the concept of a COMPRESSED WORK WEEK?

It is a scheme where the normal workweek is reduced to less than 6 days but the total number of work-hours of 48 hours per week shall remain. The normal workday is increased to more than 8 hours but not to exceed 12 hours, without corresponding overtime premium. The concept can be adjusted accordingly depending on the normal workweek of the company (Department Advisory Order No. 2, Series of 2004). Requisites 1. The scheme is expressly and voluntarily supported by majority of the employees 2. In firms using substances, or operating in conditions that are hazardous to health, a certification is needed from an accredited safety organization or the firm's safety committee that work beyond 8 hours is within the limit or levels of exposure set by DOLE's occupational safety and health standards. 3. The DOLE Regional Office is duly notified (Department Advisory Order No. 2, Series of 2004).

If the error is not corrected in a reasonable time, it ripens into a company policy and employees can demand it as a matter of right.

It is applicable if it is shown that: 1. Grant of benefit is based on a policy or has ripened into a practice over a long period; 2. Practice is consistent and deliberate; 3. Practice is not due to an error in the construction or application of a doubtful or difficult question of law; 4. The "benefits" refer to monetary benefits or privileges given to the employee with monetary equivalents; and 5. It is done unilaterally by the employer.

When is the Non-Diminution of Benefits principle applicable?

It is applicable if it is shown that: 1. Grant of benefit is based on a policy or has ripened into a practice over a long period; 2. Practice is consistent and deliberate; 3. Practice is not due to an error in the construction or application of a doubtful or difficult question of law; and 4. It is done unilaterally by the employer.

Hours of work of hospital and clinic personnel

It is compensable. General Rule: 8 hours for 5 days (40-hour workweek), exclusive of time for meals. Exception: Where the exigencies of the service require that such personnel work for 6 days or 48 hours, they shall be entitled to an additional compensation of at least 30% of their regular wage for work on the 6th day (LC, Art. 83).

Hours of worked by part-time workers

It is compensable. If the work is partial, the pay should also be partial (1 Azucena, 2016, p. 294).

How do you establish Employee Employer Relation on School Teachers

It is established when the school exercises effective control and supervision over the work of the school teachers which includes what subjects to be taught, when to be taught and where to be taught. Further, when they receive regular compensation from the school. (FEATI University vs. Bautista)

Meal Periods

It is not compensable during a time-off. Employee must be completely relieved from duty. However, it is compensable where the lunch period or meal time: 1. Is predominantly spent for the employer's benefit; 2. When it is less than 60 minutes (IRR Labor Code, Book III, Rule 1, Sec. 7); or 3. Meal periods of 1hour are deemed compensable when the employee is on continuous shift (National Dev't Corp. v. CIR, G.R. No. 15422, 1962)

Cite the significance of determining whether employment of an employee is Private or public/government.

It is significant to determine whether one is a private or public employee because these employees are governed by separate and different rules. For public employees, they are governed by the Civil Service Rules while private employees are being governed by the Labor Code. Thus, it is necessary to determine in order to know which law will apply to them.

Premium Pay

It is the additional compensation for work rendered by the Ee on days when normally he should not be working such as special holidays and WRDs. Refers to the additional compensation required by law to be paid for work performed within the regular eight (8) hours on non-working days such as rest days and special holidays. Refers to the regular wage combined with the additional compensation of 30% under Article 93 and 100% under Article 94 (1 Azucena, 2016).

How do you establish Employee Employer Relation on Street - Hired Cargadores

It is undeniable that petitioner's members worked as cargadores for private respondent. They loaded, unloaded and piled sacks of palay from the warehouses to the cargo trucks and from the cargo trucks to the buyers. This work is directly related, necessary and vital to the operations of Corfarm. Moreover, Corfarm did not even allege, much less prove, that petitioner's members have "substantial capital or investment in the form of tools, equipment, machineries, and work premises, among others." Furthermore, said respondent did not contradict petitioner's allegation that it paid wages directly to these workers without the intervention of any third-party independent contractor. It also wielded the power of dismissal over petitioners; in fact, its exercise of this power was the progenitor of the Second Case. Clearly, the workers are not independent contractors. (Caurdanetaan Piece Workers Union vs. Laguesma & Corfarm Grains)

State and Explain the factors in determining minimum wage?

It must be economically feasible to maintain the minimum standards of living necessary for the health, efficiency and general well-being of the employees within the framework of the national economic and social development program.

Capital

It refers to accumulated assets (as money) invested or available for investment. It is typically in cash or liquid assets and is being held or obtained for expenditures.

Contractual Prerogative

It refers to the employee's decision to accept or refuse the work or package offered. It covers those whose employment is governed by the contracts they sign every time they are hired. Their employment is terminated when the contract expires, which is usually fixed for a certain period of time. E.g. X decides to decline the work offer of Company B due to its low compensation and poor work package. Those who employment is governed by the contracts they sign every time they are hired. Their employment is terminated when the contract expires, which is usually fixed for a certain period of time. Absent a mutually-agreed upon agreement, there is no renewal or extension of an expired contract. The existence of a contract does not mean there can be no illegal dismissal. Due process (substantial and procedural) must still be observed in termination and pre-termination of the contract.

Explain the Principle of Co-Determination and its effects on employees.

It refers to the right of workers to participate in policy and decision-making process affecting their rights and benefits without intruding into matters of management prerogatives. (PAL v. NLRC, G.R. No. 85985, August 13, 1993; 1987 Constitution, Art. XIII, Sec. 3) It is a joint responsibility of the employer and the employee in such that it gives an employee a voice in the determination of the terms and conditions of employment.

Frictional unemployment

It refers to those workers who are in between jobs.

Waiting Time

It shall be considered as working time and is compensable if: 1. Waiting is an integral part of this work; 2. The employee is required or engaged by the employer to wait; or 3. When employee is required to remain on call in the employer's premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose (IRR, Book III, Rule I, Sec. 5).

Explain the wisdom of DOLE DO 174.

It was issued by the Secretary of Labor and Employment implementing and interpreting Articles 106 to 109 of the Labor Code. The regulations governing contracting and subcontracting arrangements are hereby issued in said DO. Its guiding principle provides that non-permissible forms of contracting and subcontracting arrangements undermine the Constitutionl and statutory right to security of tenure of workers.

SAMEER OVERSEAS PLACEMENT AGENCY INC. v. CABILES

Joy was deployed to work for Taiwan Wacoal, Co. Ltd. on June 26, 1997 for 1 year. She alleged that Sameer Overseas Agency required her to pay a placement fee of P70, 000.00. On July 14, 1997, Mr. Huwang of Wacoal informed Joy, without prior notice, that she was terminated and was given a salary from June 26 to July 14, 1997 only. Joy filed a complaint for illegal dismissal with the NLRC. She asked for the return of her placement fee, the withheld amount for repatriation costs, payment of her salary for 23 months as well as moral and exemplary damages. The NLRC ruled that Joy was illegally dismissed and awarded her three months' worth of salary, the reimbursement of the cost of her repatriation, and attorney's fees. Should Joy be awarded three months' worth of salary and reimbursement of the cost of her repatriation? NO. Joy is entitled to her salary for the unexpired portion of her contract, in accordance with Section 10 of Republic Act No. 8042. Since she started working on June 26, 1997 and was terminated on July 14, 1997, Joy is entitled to her salary from July 15, 1997 to June 25, 1998. Furthermore, there is an implied stipulation in contracts between the placement agency and the overseas worker that in case the overseas worker is adjudged as entitled to reimbursement of his or her placement fees, the amount shall be subject to a 12% interest per annum. This implied stipulation has the effect of removing awards for reimbursement of placement fees from Circular No. 799's coverage. However, if judgment did not become final and executory before July 1, 2013 and there was no stipulation in the contract providing for a different interest rate, other money claims under Section 10 of Republic Act No. 8042 shall be subject to the 6% interest per annum in accordance with Circular No. 799 (Sameer v. Cabiles, G.R. No. 170139, Aug. 05, 2014).

ITALKARAT 18, INC. PETITIONER, VS. JURALDINE N. GERASMIO

Juraldine N. Gerasmo is the Maintenance Head and Die maker in the Italkarat 18 Inc. From June 1, 1990 until his alleged dismissal on November 20, 2008. The respondent claimed that Noel San Pedro the Officer In charge of the company informed him in November 2008 that the company was planning to retrench a number of workers in the Respondents department (Maintenance and Tool and Die Section) and If the respondent choose to retire early, he will be given a sum of P170,000. And San Pedro then allegedly caution juraldine that if he will not retire early the company would eventually retrench or terminate him without even receiving anything. In light of the foregoing, Juraldine executed and signed a resignation letter and quitclaim on November 20, 2008. He was then informed to return on November 25, 2008, to get his check worth P170,000.00. However, to his dismay, Juraldine was later informed by San Pedro that he would bereceiving only the amount of P26,901.34.11 Thus, Juraldine, through his lawyer, sent a letter date dNovember 25, 2008, essentially demanding the amount of P170,000.00 he was allegedly promisedearlier. Since the Company did not respond, Juraldine filed an instant complaint for illegal dismissal. There is no illegal dismissal involved because there is no dismissal in the first place since Juraldinevoluntarily resigned from the company. The investigation also shows that Juraldine has been intending on resigning and working abroad even before San Pedro talked with him and even before the Company'ssupposed announcement made sometime in the last quarter of the year 2008 to retrench some workers, and so the Decision of NLRC is reinstated and affirmed by the court.

What is labor-only contracting?

Labor-Only Contracting refers to an arrangement where the contractor or subcontractor recruits, supplies, or places workers to perform a job or work for a principal and the following elements are present: The contractor or subcontractor does not have substantial capital or investment to actually perform the job, work or service under its own account and responsibility; and the employees recruited, supplied or placed by such contractor or subcontractors are performing activities directly related to the main business of the principal.

Explain and provide all the exempted employees from the coverage of Art. 82 AND provide the basis and reason for their exemptions AND provide illustrations for each.

Managerial Employees - They refer to those who meet the following conditions: 1. Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof. 2. They customarily and regularly direct the work of two or more employees therein. 3. They have the authority to hire or fire employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight (Sec. 2[b], Rule I, Book III, Rules Implementing the Labor Code). They are employed as such by virtue of their special training or expertise, experience or knowledge and for positions which require the exercise of independent judgment and discretion. They are not subject to the rigid observance of regular office hours, as the true worth of their services do not depend so much on the time they spend in office but more on the results of their accomplishments. For these type of workers, it is not feasible to provide fixed hourly rate of pay or maximum hours of labor (NAWASA v. NWSA Consolidated Union, G.R. No. L-18939, 31 August 1964; UPSU v. Laguesma, G.R. No. 122226, 25 March 1998).

State ALL the recognized REGULAR HOLIDAYS in labor laws.

New Year's Day Maundy Thursday Good Friday Araw ng Kagitingan Labor Day Independence Day Nat'l Heroes Day Bonifacio Eid'l al Fit'r Eid al Adha Christmas Day Rizal Day

Is the OSH law applicable to both government and the private sector? explain thoroughly.

No, it excludes the public sector. Section 2 of said law provides that such act shall apply to all establishments, projects, sites, including Philippine Economic Zone Authority (PEZA) establishments, and all other places where work is being undertaken in all other places where work is being undertaken in all branches of economic activity, except in public sector.

Are service charges a demandable right?

No, it is not a demandable right because it is only applicable to hotels, restaurants and similar establishment collecting service charges. Also, not all employees are covered by service charges (e.g. managerial employees).

Are maternity leave benefits included in the computation of 13th month pay? Explain with legal basis.

No, maternity leave benefits are excluded in the computation of 13th month pay. Maternity leave benefits and other benefits provided by Social Security Act are granted to employees in lieu of wages. Thus, the same are excluded in computing the employee's 13th month pay for the calendar year (Handbook on Workers' Statutory Monetary Benefits, p. 37).

Is the contractor allowed to just supply workers who will do the work, to the principal?

No, the contractor is not allowed to just supply workers. A job contractor is supposed to undertake the work for the principal (utilizing his own employees), and not just supply workers to the principal. This would constitute the illegal practice of labor-only contracting.

Is a Contract necessary to create an employer-employee relationship? Explain with credible legal basis.

No, the employment contract is not the sole indicator of an employer-employee relationship. The absence of an employment contract does not indicate an absence of an employer-employee relationship. When the existence of the employer-employee relationship is in question, the court has generally applied the four-fold test. In the case of Victor Meteoro et. al. vs Creative Creatures, Inc., the court stated that to establish the 4 elements of employer-employee relationship, any competent and relevant evidence may be considered including but not limited to: - Identification Cards; - Cash Vouchers; - Social Security Registration; - Appointment Letters; - Employment Contracts; - Payrolls; - Organization Charts; and - Personnel List.

Are self-employed employees entitled to Service Incentive Leave? What are the available leaves a self- employed employee may avail of, if any?

No, they are not entitled. A voluntary or a self-employed member, under Circular 36-V issued by the SSS dated 24 May 1997, if they have qualifying contributions using the new contribution schedule, they shall be entitled to maternity benefits.

One Union One Company Policy

Once again, we enunciate that the proliferation of unions in an employer unit is discouraged as a matter of policy unless compelling reasons exist which deny a certain and distinct class of employees the right to self-organization for purpose of collective bargaining. (See General Rubber & Footwear Corporation v. Bureau of Labor Relations) As clearly indicated in the aforequoted decision, the "one union — one company" rule is not without exception. The exclusion of the subject employees from the rank-and-file bargaining unit and the CBA is indefinitely a "compelling reason" for it completely deprived them of the chance to bargain collectively with petitioner and are thus left with no recourse but to group themselves into a separate and distinct bargaining unit and form their own organization. The one company-one union policy must yield to the right of the employees to form unions or associations for purposes not contrary to law, to self-organization and to enter into collective bargaining negotiations, among others, which the Constitution guarantees.

Employer

One who hires services of another and pays him compensation. It includes any person acting in the interest of an employer directly or indirectly. It shall not include any labor organization or any of its officers or agents except when acting as employer.

Can substantial capital be sufficient to legitimize labor only subcontracting?

Only one of either (i) substantial capital or (ii) performing activities related to the main business - is required for Labor-Only Contracting to exist. Performing activities directly related to the principal business of the employer is only one of the two indicators that "labor-only" contracting exists; the other is lack of substantial capital or investment. Labor-only contracting exists when any of the two elements is present. (Quintanar, et al. v. Coca-Cola, G.R. No. 210565, 2016)

Paternity Leave Under R.A. 8187, or the Paternity Leave Act of 1996

Paternity Leave refers to the benefits granted to a married male employee allowing him not to report for work for seven (7) days but continues to earn the compensation therefor, on the condition that his spouse has delivered a child or suffered a miscarriage for purposes of enabling him to effectively lend support to his wife in her period of recovery and/or in the nursing of the newly-born child. (R.A. No. 8187, Sec. 3)

When is recruitment considered QUALIFIED

Qualified - It is done in two ways: by a syndicate or through a large scale. Illegal recruitment by a syndicate 1. The offender undertakes either any activity within the meaning of "recruitment and placement" defined under Art. 13(b), or any of the prohibited practices enumerated under Art. 34 of the Labor Code; 2. He has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and 3. The illegal recruitment is committed by a group of three (3) or more persons conspiring or confederating with one another. (People v. Gallo, G.R. No. 187730, 2010) Illegal recruitment in large scale 1. The accused engages in acts of recruitment and placement of workers defined under Art. 13(b) of the Labor Code or in any prohibited activities under Art. 34 of the Labor Code; 2. The accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of license or an authority to recruit and deploy workers, either locally or overseas; and 3. The accused commits the unlawful acts against three or more persons individually or as a group.

Qualified Premium Pay

Qualified wages are any wages the employer pays or incur for services performed by a qualified employee. Qualified wages also include any qualified employee's health insurance benefits that are paid or incurred on behalf of a qualified employee. The Philippine social security system covers old age, disability, death, sickness and maternity. Private employees are covered under the state- run pension fund, the Social Security System (SSS), while public sector employees and military personnel are covered by the Government.

Discuss the recent developments on the aspect of SERVICE CHARGES. Elaborate on the significance of RA 11360 to labor law.

Rank-and-file employees of restaurants, hotels, and other similar businesses are now entitled to 100% of the service charges received from clients owing to the passage of Republic Act No. 11360. R.A. No. 11360 amends Article 96 of the Philippine Labor Code, which previously stated that covered employees would receive 85% of the total service charge collected by the establishments, while the remaining 15% would be used to cover losses and breakages and given to managerial staff, at the employer's discretion. Under R.A. 11360, those who "laid down and execute management policies or to effectively recommend such managerial actions" are referred to as "managerial employees," and as such, they are not eligible to receive a portion of the service fees that are now being collected.

In-House Agency

Refers to a contractor or subcontractor engaged in the supply of labor which: 1. Is owned, managed or controlled by the principal; and 2. Operates solely for the principal owning, managing or controlling it. NOTE: Contracting out a job, work or service through an in-house agency is contrary to law or public policy (DOLE D.O. No. 174 s. 2017).

What is a Bonus?

Refers to the payment in excess of regular or guaranteed wages. It is granted to an employee for his tangible contribution to the success of the employer's business, without which the employer may not realize bigger profits. The contribution may be in the form of an employee's commitment to the job, his industry and loyalty (Metro Transit Org., Inc. v. NLRC, G.R. No. 116008, July 11, 1995).

What are the tax ramifications of 13th month pay?

Republic Act No. 10963 or the TRAIN law on January 2018 stipulates that the 13th month pay and other equivalent benefits shall not be subject to tax for a maximum of P90,000. This new amount is a relative increase from the previous tax exclusion rate of P82,000 under Section 32 (B)(7)(e) of the National Internal Revenue Code (NIRC) Anything beyond the maximum exclusion rate of P90,000 must be included in the computation of the employee's gross income for the applicable taxable year.

Payment through Banks

Requisites 1. There must be a written permission of the majority of the employees concerned in an establishment 2. The establishment must have 25 or more employees 3. The establishment must be located within 1 km. radius to the bank.

How do you establish Employee Employer Relation on Workers in Movie Projects

Respondents also admit that the petitioners were part of a work pool wherein they attained the status of regular employees because of the ff. requisites: (a) There is a continuous rehiring of project employees even after cessation of a project; (b) The tasks performed by the alleged "project employees" are vital, necessary and indispensable to the usual business or trade of the employer; and (c) However, the length of time which the employees are continually re-hired is not controlling but merely serves as a badge of regular employment. (Maraguinot vs. NLCR, Del Rosario & Viva Films)

Brief Rest Periods

Rest periods or coffee breaks running from 5-20 minutes shall be considered compensable working time. (IRR Labor Code, Book III, Rule 1, Sec. 7) To shorten meal time to less than 20 minutes is not allowed. If it is less than 20 minutes, it becomes only a REST PERIOD and is considered working time (Labor Code, Art. 84, ¶ 2)

The recognized liabilities of Local Recruitment Agency and Foreign Employer as provided under RA 10022.

Section 10 of Republic Act No. 8042, otherwise known as The Migrant Workers and Overseas Filipinos Act of 1995, as amended by Republic Act No. 10022, provides that the liability of the principal/employer and the recruitment/ placement agency for any and all claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damage shall be joint and several. Section 10 of Republic Act No. 8042 further requires that this joint and solidary liability provision "be incorporated in the contract for overseas employment and shall be a condition precedent for its approval." The fundamental effect of joint and several liability is that 'each of the debtors is liable for the entire obligation.' A final determination may, therefore, be achieved even if only one of the joint and several debtors are impleaded in an action. Hence, in the case of overseas employment, either the local agency or the foreign employer may be sued for all claims arising from the foreign employer's labor law violations. XPN: Where the workers themselves insisted for the recruitment agency to send them back to their foreign employer despite their knowledge of its inability to pay their wages, the agency is absolved from liability (Feagle Construction Corp. vs. Gayda, GR 82310, June 18, 1990).

Provide all the requirements of DO 174.

Section 15. Requirements for Registration. The verified application for registration as a contractor shall be filed at the DOLE Regional Office in the region where it seeks to principally operate. Whenever applicable, the applicant shall provide in the application form the following information: a) The name and business address of the applicant and the areas where it seeks to operate; b) The names and addresses of officers, if the applicant is a corporation, partnership, cooperative or a labor organization; c) The nature of the applicant's business and the industry or industries where the applicant seeks to operate; d) The number of regular workers and the total workforce; e) The list of clients, if any, the number of personnel assigned to each client, if any, and the services provided to the client; f) The description of the phases of the contract, including the number of employees covered in each phase, where appropriate; and g) Proof of compliance with substantial capital requirement as defined in Section 30) of these Rules. The application shall be supported by: a) A certified true copy of a certificate of registration of firm or business name from the Securities and Exchange Commission (SEC), Department of Trade and Industry (DTI). Cooperative Development Authority (CDA), or from the DOLE if the applicant is a labor organization; b) A certified true copy of the license or business permit issued by the local government unit or units where the contractor operates; c) A certified listing, with proof of ownership or lease contract, of facilities, tools, equipment, premises implements, machineries and work premises, that are actually and directly used by the contractor in the performance or completion of the specific job or work contracted out. In addition, the applicant shall submit a photo of the office building and premises where it holds office; d) A copy of audited financial statements if the applicant is a corporation, partnership, cooperative or a labor organization, or a copy of the latest ITR if the applicant is a sole proprietorship, and e) A sworn disclosure that the registrant, its officers and owners or principal stockholders or any one of them, has not been operating or previously operating as a contractor under a different business name or entity or with pending cases of violations of these Rules and/or labor standards, or with a cancelled registration. In case any of the foregoing has a pending case, a copy of the complaint and the latest status of the case shall be attached.

the support services mandated by RA 10022 to OFW's.

Section 18. Services. The Migrant Workers and other Overseas Filipinos Resource Center shall provide the following services: a. Counseling and legal services; b. Welfare assistance including the procurement of medical and hospitalization services; c. Information, advisory programs to promote social integration such as post-arrival orientation, settlement and community networking services and activities for social interaction; d. Registration of irregular/undocumented workers to bring them within the purview of the Act; e. Implementation of DOLE and OWWA Programs; f. Human resource development, such as training and skills upgrading; g. Gender-sensitive programs and activities to assist particular needs of migrant workers; h. Orientation program for returning workers and other migrants; i. Monitoring of the daily situation, circumstances and activities affecting migrant workers and other overseas Filipinos; j. Ensuring that labor and social welfare laws in the receiving country are fairly applied to migrant workers and other overseas Filipinos; and k. Conciliation of disputes arising from employer-employee relationship, in accordance with this Rule.

How do you establish Employee Employer Relation on Security Guards

Security guards, like other employees in the private sector, are entitled to security of tenure. However, their situation should be differentiated from that of other employees or workers. The employment of security guards generally depends on their employers' contracts with clients who are third parties to the employment relationship, and the requirements of the latter for security services and what will be beneficial to them dictate the posting of the security guards. It is also relevant to mention that their employers retain the management prerogative to change their assignments and postings, and to decide to temporarily relieve them of their assignments. (Spectrum Security Services, Inc. vs. Grave)

Explain exhaustively the term Social Justice.

Social justice is neither communism, nor despotism, nor atomism, nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. (Calalang v. Williams) The welfare state concept is found in the constitutional clause on the promotion of social justice to ensure the well-being and economic security of all the people, and in the pledge of protection to labor with specific authority to regulate the relations between landowners and tenants and between labor and capital. (Alalayan v. National Power Corp.) Social justice should be used only to correct an injustice. It must be founded on the recognition of the necessity of interdependence among diverse units of a society, and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life. (Agabon v. NLRC)

Delia D. Romero VS People of the Philippines

Sometime in September 2000 Romulo went to petitioner's stall to inquire about securing a job in Israel. Convinced by petitioner's words of encouragement and inspired by the potential salary of US$700.00 to US$1,200.00 a month, Romulo asked petitioner the amount of money required in order for him to be able to go to Israel. Petitioner informed him that as soon as he could give her US$3,600.00, his papers would be immediately processed. Petitioner contacted Jonney Erez Mokra who instructed Romulo to attend a briefing at his (Jonney's) house in Dau,Mabalacat, Pampanga. Romulo was able to leave for Israel on October 26, 2000 and was able to secure a job. Unfortunately, after two and a half months, he was caught by Israel's immigration police, detained, and then deported. On the other hand, private respondent Arturo Siapno is petitioner's nephew. He suffered the same fate as Romulos. As testimonies of SIAPNO and PADLAN shows that petitioner was able to convince the private respondents to apply for work in Israel after parting with their money in exchange for the services she would render. Such act of the petitioner, without a doubt, falls within the meaning of recruitment and placement as defined in Article 13 (b) of the Labor Code[2]. The Court ruled that in illegal recruitment cases, the failure to present receipts for money that was paid in connection with the recruitment process will not affect the strength of the evidence presented by the prosecution as long as the payment can be proved through clear and convincing testimonies of credible witnesses.

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. AVELINA MANALANG A.K.A. TESS ROBLES

That in or about and during the period comprised between June 2000 to May 28, 2011, inclusive in the City of Manila, Philippines, the said accused (defendant-appellant, herein), conspiring and confederating with one whose true name, real identity and present whereabouts is still unknown and mutually helping each other, representing herself to have the capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there willfully and unlawfully, for a fee, recruit and promise employment/job placement without first having secured the required license or authority from the Department of Labor and Employment and said accused without valid reasons and without the fault of the complainants failed to actually deploy them and continuously fail, despite demands to reimburse the expense incurred by the said complainants in connection with their documentation and processing for purpose of their deployment. Manalang is guilty beyond reasonable doubt of the crime of Illegal Recruitment in Large Scale under RA 8042. Firstly, there is no doubt that the accused-appellant engaged in acts of recruitment and placement of workers. She promised to deploy the private complaints for work abroad upon payment of their placement fee. Secondly, it was duly established that Manalang was neither licensed nor authorized by the POEA to recruit workers for overseas employment, as evidenced by the POEA Certification[73] dated January 23, 2002. Thirdly, the illegal recruitment was committed in large scale because the accused-appellant defrauded at least three persons, namely, Tura, Marañon and Cawas, who are the private complainants in the instant case.

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ANNA ESPIRITU AND ELLEN MABBORANG

That the above-named accused being the owners, officers, employees of Green Pastures International Staffing Incorporated ("Green Pastures") and engaged in the business of overseas recruitment as licensed by the ("POEA"), did then and there willfully, unlawfully, and criminally, with intent to defraud, promise employment and receive varying amounts as placement and documentation fees from private complainants; and thereafter demand, on various occasions, placement and documentation fees from said private complainants, but without valid reasons and through no fault of said private complainants, accused fail to actually deploy them abroad; that despite repeated demands to reimburse expenses incurred by private complainants in connection with their documentation and processing for purposes of deployment, respondents fail and refuse and continues to fail and refuse to reimburse the amounts received, to the damage and prejudice of herein private complainants. Rios was convicted in her capacity as president and general manager of Green Pastures, Inc. While corporate officers are generally not held personally liable for corporate acts as corporations have separate and distinct legal personality from the persons comprising it, they may be found liable when a specific provision of law makes them personally liable for a corporate action.37 This is the case here as the last paragraph of Section 6 of RA 8042 specifically provides that when Illegal Recruitment is committed by a juridical entity, the persons liable shall be the officers having control, management or direction of the business.

ADRIANO TOSTON Y HULAR, PETITIONER, VS. PEOPLE OF THE PHILIPPINES

That the said accused, representing themselves to have the capacity to contract, enlist and transport "Filipino Workers" for employment abroad, did then and there willfully and unlawfully, for a fee, recruit and promise employment/job placement abroad to Singapore as waitress, to MARY ANN O. SOLIVEN, without first having secured the required license or authority from the Department of Labor and Employment, and received the amount of Php50,000.00 as processing fee but failed to actually deploy said worker and failed to reimburse worker of the said amount in connection with said deployment of Mary Ann O. Soliven. In the case at bar, both courts a quo found Toston guilty of illegal recruitment per se, as neither he (in his personal capacity) nor his purported principal Steadfast had a valid recruitment license from the POEA at the time of Mary Ann's recruitment. Likewise, Toston was also found guilty of illegal recruitment practices, specifically under Section 6(1), since Mary Ann was not actually deployed despite signing an employment contract and paying a placement fee. Toston committed acts amounting to illegal recruitment per se when he interviewed Mary Ann and referred her to Runas for further processing of her job application. Toston argues that these acts do not amount to illegal recruitment. In the case at bar, Toston's participation in the alleged illegal recruitment was not limited solely to interviewing the applicant. He referred Mary Ann's application to the recruitment assistant (Runas) and gave her the referral slip for the medical examination. Clearly, Toston admitted that he passed Mary Ann on to Runas for the processing of her overseas job application. This amounts to a referral which is expressly mentioned in Section 6 of R.A. No. 8042 as an act of illegal recruitment.

What is the threshold of the 13th month pay?

The 13th month pay is equivalent to one twelfth (1/12) of an employee's basic annual salary. Due to the Tax Reform for Acceleration and Inclusion (TRAIN) act law which took effect on January 1, 2018, the threshold for 13th-month salary and other employer incentives to be exempt from paying taxes has risen from Php 82,000 to Php 90,000.

Discuss the case of Calalang vs. Williams

The Chairman of the National Traffic Commission, recommended to the Director of Public Works the adoption of the measure of the provisions of Commonwealth Act No. 548 which gives the Director of Public Works an authority, with the approval of the Secretary of Public Works and Communications, to promulgate the necessary rules and regulations to regulate and control the use of and traffic on such roads and streets to promote safe transit upon, and avoid obstructions on, roads and streets designated as national roads. The Director of Public Works adopted the resolution of the National Traffic Commission, prohibiting the passing of animal drawn vehicles in certain streets in Manila. Maximo Calalang in his capacity as a private citizen and a taxpayer of Manila filed a petition for a writ of prohibition against the respondents, A. D. Williams, et al. Petitioner questioned this as the rules and regulations complained of infringe upon the constitutional precept regarding the promotion of social justice to insure the well-being and economic security of all the people. The issue is whether or not the rules and regulations complained of infringed upon the constitutional precept regarding the promotion of social justice to insure the well-being and economic security of all people. The Supreme Court ruled in the negative. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principles of salus populi est suprema lex. Social justice must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting health, comfort and quiet of all persons, and of bringing about "the greatest good to the greatest number."

Discuss fully the cardinal rights of Labor.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. (1) right to self-organization; (2) collective bargaining and negotiations; (3) peaceful concerted activities including the right to strike in accordance with law; (4) security of tenure; (5) humane conditions of work; (6) living wage; and (7) participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

What is the basic policy of labor laws in the Philippines?

The State shall: - Afford protection to labor - Promote full employment - Ensure equal work opportunities regardless of sex, race or creed - Regulate the relations between workers and employers The State shall assure the rights of workers to: - Self-organization - Collective bargaining - Security of tenure - Just and humane conditions of work

How do you establish Employee Employer Relation on TV Host

The Supreme Court held that Sonza was not an employee of ABS-CBN. As a "talent," he was an independent contractor. In coming up with this conclusion, the Court looked at the essential elements of employer-employee relationship and applied the control test. (a) Selection and engagement of employee (b) Payment of wages (c) Power of dismissal (d) Power of control. In Sonza's case, ABS-CBN did not exercise control over the means and methods of his work. The Court found that ABS-CBN was not involved in the actual performance that produced the finished product of Sonza's work. (Sonza v. ABS-CBN)

How does this affect an overseas Filipino Worker or migrant worker in the protection their interest and rights?

The agency is revoked if the principal directly manages the business entrusted to the agent, dealing directly with third persons. (Article 1924, NCC) A local employment agency is considered the agent of the foreign employer, the principal. Notice to the local employment agency of any violation thereof is notice to the principal foreign employer. But, notice to the principal is not notice to the agent. Thus, notice to the foreign employer is not notice to the local employment agency.

How do you establish Employee Employer Relation on Drivers

The drivers, purportedly classified as 'independent contractors,' are in fact engaged in non-standard precarious employment: they are not covered by social security, they work beyond normal working hours and they are not assured of a fixed and stable income, among others. Moreover, applying the four-fold test, the study concludes there is an employer-employee relationship between Grab and Uber and the drivers. These findings support the existence of a continuum of formality and informality of employment arrangements and relations even in the 'gig economy'.

Provide the instances when an employee may be required to render work on his rest day?

The following are the instances when an employee may be compelled to work on his rest day: 1. 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; 2. In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which the employer would otherwise suffer; 3. In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures; 4. To prevent loss or damage to perishable goods; 5. 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 6. Under other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment (LC, Art. 92)

Provide the instances when an employee may be required to render overtime work?

The following are the instances when compulsory overtime work may be rendered: 1. When the country is at war or when any other national or local emergency has been declared by Congress or the Chief Executive; 2. When overtime work is necessary to prevent loss of life or property, or in case of imminent danger to public safety due to actual or impending emergency in the locality caused by serious accident, fire, floods, typhoons, earthquake, epidemic or other disaster or calamities; 3. 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 causes of similar nature; 4. When the work is necessary to prevent loss or damage to perishable goods; 5. When the completion or continuation of work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer; or favorable weather or environmental conditions where performance or quality of work is dependent thereon (LC, IRR, Sec. 10; Art. 89).

How do you establish Employee Employer Relation on Truck Trailer/Lorry Drivers

The four (4) elements are present in this case: First. It is undisputed that respondent hired petitioner to work as a truck driver for his private enterprise, GPT. Second. Petitioner received compensation from respondent for the services he rendered. Third. Respondent's power to dismiss was inherent in the selection and engagement of petitioner as truck driver. Fourth. The presence of the element of control, which is the most important element to determine the existence or absence of employment relationship, can be safely deduced from the fact that: (a) respondent owned the trucks that were assigned to petitioner; (b) the cargoes loaded in the said trucks were exclusively for respondent's clients; and (c) the schedule and route to be followed by petitioner were exclusively determined by respondent. (Felicilda vs. Uy)

Explain the significance and legal ramification of A SPECIAL WORKING HOLIDAY from A SPECIAL NON-WORKING HOLIDAY

The legal significance of both types of holidays are with regard to compensation of the employees. For those declared as special working holidays, the following rules shall apply: A. For work performed, an employee is entitled only to his basic rate. B. No premium pay is required since work performed on said days is considered work on ordinary working days. For declared Special Holidays such as Special Non Working Day, Special Public Holiday, Special National Holiday in addition to the 3 nationwide special (nonworking) days A. If it is employee's regular workday 1. unworked- no pay unless there is a favourable company policy, practice or CBA granting payment of wages on special days even if unworked. 2. Worked I. 1st 8 hours- plus 30% of daily wage rate of 100% II. Excess of 8 hours- Hourly rate of the basic daily wage x 130% x 130% x no. of hours worked. B. If it is employee's rest day and worked 1. 1st 8 hours- 150% 2. Excess of 8 hours- Hourly rate of the basic daily wage x 150% x 130% x no. of hours worked.

Explain the difference and legal significance of a SPECIAL HOLIDAY from a REGULAR HOLIDAY.

The legal significance of both types of holidays are with regard to compensation of the employees. In a regular holiday, generally, they are compensable whether worked or unworked subject to certain conditions. They are also called legal holidays. However, on a special holiday, it is not compensable if unworked and it is compensable if worked, depending if it is a special non-working day or a working holiday.

"NON DIMUNITION OF BENEFITS"

The philosophy behind the law is to prohibit employers from reducing benefits already enjoyed by employees. A contrary rule will corrupt the employer's mind to abuse and exploit employees, prostituting the social justice and protection to labor clauses enshrined in the fundamental charter. Thus, a change of method of payment of wages from monthly to daily will not be allowed if it would result in reduction of pay. However, if the method introduced would augment the worker's pay it will be valid. Reclassification of position of employees pursuant to reorganization, without affecting their compensation is not covered by the proscription (Opinion of the Secretary of Labor, 7 October 1975). An agreement reducing certain labor standards benefits such as overtime and premium pay violates Art. 100. Provisions of existing laws are deemed part of a contract (Republic Planters Bank v. NLRC, 266 SCRA 142). However, if there is an impelling reasonable justification of the diminution or reduction because of an emergency or exigency, or business losses, such diminution or reduction would be valid, provided it is duly approved by the Secretary of Labor and Employment or his duly authorized representative pursuant to Art. 233 (Poquiz, p. 229).

Explain and State the purpose/s of the RA 11058? Discuss Department Order 198-18?

The purpose of R.A. 11058 or the Act Strengthening Compliance with Occupational Safety and Health Standards and Providing Penalties for Violations is to ensure a safe and healthful workplace for all working people by affording them full protection against all hazards in their work environment. The Republic Act No. 11058 has improved the workplace protections for Filipino employees. By mandating businesses to provide thorough safe work practices, information dissemination regarding work-related dangers, safety and health training, and protective equipment, this law ensures that workplaces are safer. Department Order 198-18 is the IRR of R.A. 11058. It covers all private establishments where work is being undertaken including establishments located inside special economic zones and other investment promotion agencies (e.g. Philippine Economic Zone [PEZA], Clark Development Corporation [CDC]) as well as utilities engaged in air, sea and land transportation. Covered workplaces through the Health and Safety Committee (HSC), shall develop and implement a suitable OSH Program following the DOLE-prescribed format.

Explain the wisdom behind the requirement of the NORMAL WORKING HOURS RULE.

The rationale behind the normal working hours rule wherein the The normal hours of work of any employee shall not exceed 8 hours a day (LC, Art. 83), is: 1. To safeguard the health and welfare of the laborer; and 2. To minimize unemployment by utilizing different shifts (Manila Terminal Co., Inc. V. CIR, G.R. No. L-4148, 16 July 1952).

Is the relationship between employee and employer contractual in nature?

The relations between employer and employee are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects (Art. 1700, Civil Code)

How do you establish Employee Employer Relation on Taxi Drivers

The relationship of taxi owners and taxi drivers is the same as that between jeepney owners and jeepney drivers under the "boundary system" which is one of an employer and employee, and not of a lessor and a lessee. In the case of taxi owners/operators and taxi drivers, the former exercise supervision and control over the latter. They are employees because they had been engaged to perform activities that were usually necessary or desirable in the usual trade or business of the employer. (Paguio Transport Corporation vs. NLRC)

Unemployment

The unutilized part of the economically active population of the country. It includes persons in the labor force who have no jobs/businesses during the reference week but are reported actively looking for work.

Reduction of eight-hour working day

The validity of the reduction of working hours can be upheld when the arrangement is: 1. Temporary; 2. It is a more humane solution instead of a retrenchment of personnel; 3. There is notice and consultations with the workers and supervisors; 4. A consensus is reached on how to deal with deteriorating economic conditions; and 5. It is sufficiently proven that the company was suffering from losses.

Are facilities and supplements taxable?

The value of supplements does not form part of and may not be deducted from the employee's wage. Thus, not taxable. Facilities, when furnished by the employer, are deductible from the employee's wage, since if they are not so furnished, the laborer would spend and pay for them just the same. Thus, taxable.

What are the relationships created in a subcontracting arrangement?

There are three parties involved in these arrangements; the principal who decides to farm out a job, work or service to a contractor; the contractor who has the capacity to independently undertake the performance of the job, work or service; and the contractual workers engaged by the contractor to accomplish the job, work or service. An employer-employee relationship between the contractor and the employees it engaged to perform the specific job, work or service being contracted; and A contractual relationship between the principal and the contractor as governed by the provisions of the Civil Code.

Provide your insights with following concept: "Shrinking economic activity vs. Widening Employment Inequality" Explain exhaustively.

There are two ways to understand this idea. Some claim that inequality encourages investment and economic growth because it allows companies to divert funds they would have otherwise spent on paying employees' legally required wages to other business endeavors. For certain people, more equitable wealth redistribution can in fact encourage long-term economic growth, which would result in a relative improvement in job prospects for people in lower income categories and for nations with lower incomes.

DOCTRINE OF IMPUTED KNOWLEDGE

This theory means knowledge of the agent is knowledge of the principal. (New Life v. CA, G.R. No. 94071, 1992) For the liability of the agent to attach, this theory states that the agent knew of and consented to the extension of period of employment. Otherwise, the liability of the recruitment agency shall expire from the termination of the worker's original contract.

How do you establish Employee Employer Relation on Jeepney Drivers

Through the "boundary" system, the jeepney owner still exercises control and supervision over the driver by seeing to it that he negotiates the route prescribed by the government agency. In this case, the jeepney owner retains control over his vehicle. The fact that a transportation company paid a driver on commission basis does not rule out the presence of employer-employee relationship. (CLFW vs. Abbas/R.Transport vs. Ejandra)

Travel That Is All In Days Work

Time spent by an employee in travel as part of his principal activity, like travel from jobsite to jobsite during the workday. It is counted as hours worked and therefore, compensable.

Travel Away From Home

Travel that keeps an employee away from home overnight. Work time when it cuts across an employee's workday. It substitutes for the hours the employee should have been in the office General Rule: A. Travel that requires an overnight stay on the part of the employee when it cuts across the employee's workday is clearly working time. B. The time is not only hours worked on regular workdays but also during corresponding working hours on non-working days. Outside of these regular working hours, travel away from home is not considered working time. Exception: During meal period or when the employee is permitted to sleep in adequate facilities furnished by the employer.

State the legal ramification if a legitimate subcontractor cannot pay the rightful wages of the employees it hired to perform the job outsourced by the principal employer. Explain thoroughly with legal basis.

Under Article 106, a principal has two types of liability in relation to the employees of the subcontractor. The first type of liability is limited, and is governed by the first two paragraphs of Article 106. Thus, mere inability of the subcontractor to pay wages will not automatically make the principal the direct employer. It will only make the principal jointly and severally liable with the subcontractor for payment of the employees' wages to the extent of the work performed under the contract. The second type of liability, which arises from the third and fourth paragraphs of Article 106, is absolute and direct. This liability arises when there is labor-only contracting as defined in D. O. No. 3. In such cases, the principal shall be responsible to the workers in the same manner and extent as if it directly employed these workers. Employer shall be jointly and severally liable with the contractor or sub-contractor to the workers of the latter to the extent that such work is performed under such contract, in the same manner as if the employees or homeworkers were directly engaged by the employer.

When is recruitment of a person for work considered illegal?

Under Article 38(a) of the LC, illegal recruitment means any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority. Under RA 8042, as amended by RA 10022, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by non-licensee or non-holder of authority: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged (RA 10022, Sec. 5).

If the contractor was not able to pay the wages of its own employees, will the principal be liable for it? Explain with legal basis.

Under the general rule set out in the first and second paragraphs of Article 106, an employer who enters into a contract with a contractor for the performance of work for the employer, does not thereby create an employer-employees relationship between himself and the employees of the contractor. Thus, the employees of the contractor remain the contractor's employees and his alone. Nonetheless when a contractor fails to pay the wages of his employees in accordance with the Labor Code, the employer who contracted out the job to the contractor becomes jointly and severally liable with his contractor to the employees of the latter "to the extent of the work performed under the contract" as such employer were the employer of the contractor's employees. The law itself, in other words, establishes an employer-employee relationship between the employer and the job contractor's employees for a limited purpose, i.e., in order to ensure that the latter get paid the wages due to them. (Philippine Bank of Communications vs. NLRC)

Define Economic realities test?

Under this test, the economic realities prevailing within the activity or between the parties are examined, taking into consideration the totality of circumstances surrounding the true nature of the relationship between the parties. This is resorted to when there is serious doubt or genuine confusion as to the relationship of the employee with the employer. The existence or non-existence of the employer-employee relationship is commonly determined by examination of certain factors or aspects of the relationship, as follows: The manner of selection and engagement of the putative employee The mode of payment of wages The presence or absence of the power of dismissal The presence or absence of a power to control the putative employee's conduct

Undertime

Undertime is defined as working time that is less than the full time or the required minimum. This is usually incurred by an officer or an employee who leaves and quits from work earlier than the usual eight-hour work schedule in a given work day. This being so, one who incurs an undertime cannot be considered to be tardy.

Demand deficient unemployment

When companies experience a reduction in the demand for their products or services, they respond by cutting back on their production, making it necessary to reduce their workforce within the organization. In effect, workers are laid off.

Subject to Call

When employee is considered working while on call and thus, compensable - When employee: 1. Is required to remain on call in the employer's premises or so close thereto; 2. or Cannot use the time effectively and gainfully for his own purpose (IRR Labor Code, Sec. 5[b], Rule 1, Book III)

Last In, first Out Principle (LIFO RULE)

When there are two or more employees occupying the same position in the company affected by the retrenchment program, the last one employed will necessarily be the first to go. However: No law mandates LIFO. A host of relevant factors come into play in determining cost-efficient measures in choosing the employees who will be retained or separated to save the company from closing chop. In determining these issues, management has to enjoy a pre-eminent role. In case of installation of labor-saving devices, redundancy and retrenchment, the LIFO rule shall apply, except when an employee volunteers to be separated from employment.

Wage Distortion

Where a significant change occurs at the lowest level of positions in terms of basic wage without a corresponding change in the other level in the hierarchy of positions, negating as a result thereof the distinction between one level of position from the next higher level, and resulting in a parity between the lowest level and the next higher level or rank, between new entrants and old hires, there exists a wage distortion (Prubankers Association v Prudential Bank & Trust Company, 302 SCRA 74). Wage distortions have often been the result of: 1. Government decreed increases in minimum wages 2. Merger of two companies (with differing classifications of employees and different wage rates) where the surviving company absorbs all the employees of the dissolved corporation, 3. Wage distortion arose because the effectivity dates of wage increases given to each of the two classes of employees (rank-and-file and supervisory) had not been synchronized in their respective CBAs (Metro Transit Org., Inc. v NLRC, 67 SCRA 477)

Explain the legal consequences of an illegal sub-contracting?

Where the contracting is found to be labor-only contracting, the liability is immediately and directly imposed upon the principal. The principal shoulders all the obligations of an employer, not just the payment of wages. The liability becomes direct and total as that of a directly-hiring employer.

Payment through member of worker's family

Where the employer is authorized in writing by the employee to pay his wages to a member of his family (IRR Labor Code, Sec. 5[a], Rule VIII, Book III)

Payment through heirs of the worker

Where the worker has died - the employer may pay the wages of the deceased worker to the heirs of the latter without the necessity of intestate proceedings. (Labor Code, Art. 105[b]) Procedure: - The claimants, if they are all of age (or in case of a minor, by the natural guardians or next-of-kin), shall execute an affidavit attesting to their relationship to the deceased and the fact that they are his heirs, to the exclusion of all other persons. - If any of the heirs is a minor, the affidavit shall be executed on his behalf by his natural guardian or next-of-kin. - The affidavit shall be presented to the employer who shall make payment through the Secretary or his representative. The representative of the Secretary shall act as referee in dividing the amount paid among the heirs. - The payment of wages under this Article shall absolve the employer of any further liability with respect to the amount paid.

Provide the penalties imposed in case of violation of RA 11058

Willful failure or refusal to comply with OSH Standards or compliance orders shall be penalized with not more than P100, 000 daily until full compliance; reckoned from the date of issuance of Notice of Results or Compliance Order. Repeated violation of the same prohibited act shall be penalized of the corresponding fine plus 50% for every instance of repeat violation. When the violation exposes the worker to death, serious injury or serious illness, the imposable penalty shall be P100,000 . Additional P100,000 fine for refusal to access the workplace, refusal to provide or allow access to records, obstruct conduct of investigation, misrepresentation and making retaliatory measures such as termination, refusal to pay, reducing wages and benefits or discriminates any worker who has given information relative to inspection.

Leave for Victims of Violence Against Women and Their Children Under Republic Act No. 9262

Women employees who qualify as victims under Republic Act No. 9262 are entitled to up to ten (10) days of paid leave. As stated in the court or barangay protection order, the aforementioned leave may be extended if necessary. The leave benefit will extend for the days the female employee needs to take care of medical and legal issues.

Work Day

Work day is the 24-hour period which commences from the time the employee regularly starts to work regardless of whether the work is broken or continuous.

Explain and provide all the exempted employees from the coverage of Art. 82 AND provide the basis and reason for their exemptions AND provide illustrations for each.

Workers who are paid by results as determined by the Secretary of Labor in appropriate regulations Workers who are paid by results include those who are paid on piece-work, "takay," "pakiao," or task basis. Payment of this type of worker is determined by the results of the work performed or the number of units produced, not the number of hours used in the completion of the job or the time spent in production (Poquiz, 2012, p. 175). Tailors and similar workers hired in the tailoring establishment, although paid weekly wages on piece-work basis, are employees and not independent contractors, and accordingly, as regular employees paid on piece-rate basis, they are not entitled to overtime pay, holiday pay, premium pay for holiday/rest day and service incentive leave pay (Villaga v. NLRC, G.R. No. 75038, August 23, 1993).

Is the compressed work week scheme applicable to government employees, if so, what are the necessary rudiments?

Yes. Compressed workweek may be allowed for government officials and employees whose task/s or portions thereof cannot be accomplished outside the office, particularly those on skeleton workforce observing the four (4)-day workweek, and those identified by the agency/office head necessary for the continued operation of the office in order not to prejudice public service delivery.

Is there a minimum capitalization requirement before one may engage as legitimate job contractor?

Yes. The Department of Labor and Employment (DOLE) provides that the capitalization requirement for contractors has been increased to P5,000,000.00.

How do you establish Employee Employer Relation on Company engaged You tubers/Video Vloggers

YouTubers are considered to be self-employed. This means they can produce their own content and set their own working hours. Thus, there is an absence of control and power by the company over the vloggers and youtubers, not being one of its employees. Applying the control test: (a) Selection and engagement of employee (b) Payment of wages (c) Power of dismissal (d) Power of control

License

a document issued by DOLE authorizing a person or entity to operate a private employment agency. The business of recruitment and replacement is regulated by law by requiring them to obtain license and authority. When one is given a license, one is also authorized to collect fees. Unlike a license, an authority does not entitle a private recruitment entity to collect fees (Duka, Labor Laws and Social Legislation, A Barrister's Companion, 2016, p. 53).

Social Legislation

a law governing employer-employee relationship while the latter is not "at work" due to hazards beyond his control arising from employment which immobilize him from working. It is designed to uplift and protect the welfare of the worker and his family, on account of the effects of employment such as diseases, injuries, disabilities, or death.

When is illegal recruitment deemed committed in large scale?

committed against three (3) or more persons individually or as a group (People v. Sadiosa, G.R. No. 107084, 15 May 1998) despite the lack of necessary license from POEA (People v. Alzona, G.R. No. 132029, 30 July 2004). Illegal recruitment in large scale 1. The accused engages in acts of recruitment and placement of workers defined under Art. 13(b) of the Labor Code or in any prohibited activities under Art. 34 of the Labor Code; 2. The accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of license or an authority to recruit and deploy workers, either locally or overseas; and 3. The accused commits the unlawful acts against three or more persons individually or as a group.

Illegal Recruitment committed by a syndicate

committed by a syndicate if carried out by a group of three (3) or more persons in conspiracy or confederation with one another; Illegal recruitment by a syndicate 1. The offender undertakes either any activity within the meaning of "recruitment and placement" defined under Art. 13(b), or any of the prohibited practices enumerated under Art. 34 of the Labor Code; 2. He has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and 3. The illegal recruitment is committed by a group of three (3) or more persons conspiring or confederating with one another. (People v. Gallo, G.R. No. 187730, 2010)