NOTES ON CRITICAL AREAS IN LABOR LAW PART II.doc

7/26/2019 NOTES ON CRITICAL AREAS IN LABOR LAW PART II.doc

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CRITICAL AREAS IN LABOR LAW(LABOR STANDARDS)

By: ATTY. VOLTAIRE T. DUANO1

Labor legila!io" a"# o$ial legila!io"% #i!i"g&i'e#

1 Bar E*a+i"a!io"

Labor legislation consists of statutes, regulations and jurisprudence governing the relationsbetween capital and labor, by provid ing for employmen t standards and a legal framework fornegotiating, adjusting and administering those standards and other incidents of employment.

Social legislation include laws that provide particular kinds of protection or benefits to society orsegments thereof in furtherance of social justice

,e"eral $lai-i$a!io" o- labor !a!&!e

//0% //% 12 a"# 1 Bar E*a+i"a!io"

1. Labor standards lawshall refer to the minimum requirements prescribed by existinglaws, rules and regulations and other issuances relating to wages, hours of work, cost of living allowancesand other monetary and welfare benefits, including those set by occupational safety and health standards.(Section 7, Rule I, Rules on the Disposition of Labor Standards Cases in the Regional Office,dated September 1, 1!"7, cited in #aternit$ Children%s &ospital 's Secretar$ of Labor, )R *o7"!+!, une -+, 1!"!.

. Social securit$ laware those laws that provide for income security and!or medical carefor contingencies such as" a. sickness b. maternity c. invalidity d. old age e. death of a bread winner#unemployment# f. emergency expenses# and g. employment injuries xxx. $ ILO Recommendation *o 7cited in page 1/! Labor and Social Legislation 0n pdated S$stematic 2resentation, 3roilan #4acungan 5+11%

&. Labor relations law defines the status, rights and duties, and the institutionalmechanisms, that govern the individual and collective interactions of employers, employees or theirrepresentatives. Labor ' is understood as physical toil although it does not necessarily exclude theapplication of skill, thus there is skilled and unskilled labor

Bai o- labor la3

Co"!i!&!io"al 4ro5iio"

/1% /11 a"# // Bar E*a+i"a!io"

(he 1)*+ onstitution mandates the protection of labor and the promotion of their welfare. (hus, the1)*+ onstitution provides the fundamental labor standards and labor relations rights of workers. -mongthe relevant constitutional provisions on labor are as follows"

1.(he State shall promote a just and dynamic social order that will ensure the prosperity andindependence of the nation and free the people from poverty through policies that provide adequatesocial services, promote full employment, a rising standard of living, and an improved quality of lifefor all. (1!"7 Constitution, Declaration of 2rinciples and State 2olicies, 0rticle II, Section ! )

.(he State shall promote social justice in all phases of national development. (1!"7Constitution, Declaration of 2rinciples and State 2olicies, 0rticle II, Section 1+.

&. (he State values the dignity of every human person and guarantees full respect for humanrights. (1!"7 Constitution, Declaration of 2rinciples and State 2olicies, 0rticle II, Section 11)

11))& LL San Sebastian ollege'/ecoletos 0nstitute of Law $lass aledictorian% and 213 4aster ofLaws, San Sebastian ollege'/ecoletos 5raduate School of Law $enemeritus%. ook author" 6rinciplesand ases, Labor Standards 7 Social Legislation, 218 9dition, and 6rinciples and ases, Labor/elations, 21: 9dition, 6rovisional /emedies 7 Special ivil -ctions, 6rinciples and ases, 2189dition, /ules on 4odes of ;iscovery, 6rinciples and ases, 213 9dition. 4L9 Lecturer, 6rofessor ofLaw and ar /eviewer in Labor Law

1


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3. (he State recogniilipino citi


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economic viability. (1!"7 Constitution, *ational ;conom$ and 2atrimon$, 0rticle II, Section1.

1). (he ongress shall give highest priority to the enactment of measures that protect andenhance the right of all the people to human dignity, reduce social, economic, and politicalinequalities, and remove cultural inequities by equitably diffusing wealth and political power for thecommon good.

(o this end, the State shall regulate the acquisition, ownership, use, and disposition of propertyand its increments. (1!"7 Constitution, Social ustice and &uman Rights, 0rticle III, Section1)

2. (he promotion of social justice shall include the commitment to create economicopportunities based on freedom of initiative and self'reliance. (1!"7 Constitution, Social usticeand &uman Rights, 0rticle III, Section 5)

1. (he State shall afford full protection to labor, local and overseas, organiull protection to labor, local and overseas,

organi


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9a"age+e"! 4reroga!i5e a"# !'oe 3'i$' a--e$! !'e rig'! o- !'e e+4loyee

10 Bar E*a+i"a!io"

0n 2hilippine 0irlines, Inc ' *ational Labor Relations Commission, et al, )R *o "/!"/,0ugust 1-, 1!!-, the principal issue is whether management may be compelled to share with the union

or its employees its prerogative of formulating a code of discipline. (he provisions in question are asfollows"

-rticles 0 and 0 of hapter 00

Section . =on'exclusivity. @ (his ode does not contain the entirety of the rules andregulations of the company. 9very employee is bound to comply with all applicable rules,regulations, policies, procedures and standards, including standards of quality,productivity, and behaviour, as issued and promulgated by the company through its dulyauthori


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employees, like herein respondent, and to impose appropriate penalties on erring workers pursuant tocompany rules and regulations. $Deles, r ' *ational Labor Relations Commission, )R *o 151-6"#arch !, 5+++% (his ourt upholds these management prerogatives so long as they are exercised ingood faith for the advancement of the employerAs interest and not for the purpose of defeating orcircumventing the rights of the employees under special laws and valid agreements. $ Challenge Soc>sCorporation ' Court of 0ppeals, )R *o 1/5", *o'ember ", 5++/, 676 SCR0 -/, -58-- %

O&!o&r$i"g a"y a$!i5i!ie a +a"age+e"! 4reroga!i5e

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0n 42I8 ;mplo$ees nion8Da'ao Cit$ 34 (42I;8Da'ao Cit$834. ' 4an> of the2hilippine Islands, 176!15, ul$ 56,5+1-, on the issue of outsourcing as a management prerogative,the Supreme ourt held" 0n one case, the ourt held that it is management prerogative to farm out any ofits activities, regardless of whether such activity is peripheral or core in nature. $0l'iado ' 2rocter )amble 2hils, Inc, )R *o 1+/+, #arch !, 5+1+,16 SCR0 /-,/77% Khat is of primordialimportance is that the service agreement does not violate the employeeHs right to security of tenure andpayment of benefits to which he is entitled under the law. >urthermore, the outsourcing must not squarelyfall under labor'only contracting where the contractor or sub'contractor merely recruits, supplies or placesworkers to perform a job, work or service for a principal xxx.M

,ra"! o- bo"&

/10% //% //% // a"# 1 Bar E*a+i"a!io"

>rom a legal point of view, a bonus is a gratuity or act of liberality of the giver which the recipienthas no right to demand as a matter of right. $2hilippine *ational Construction Corp ' *ational LaborRelations Commission, )R *o 11756+ October 5, 1!!7% (he grant of a bonus is basically amanagement prerogative which cannot be forced upon the employer who may not be obliged to assumethe onerous burden of granting bonuses or other benefits aside from the employeeAs basic salaries orwages. $@raderEs Ro$al 4an> ' *ational Labor Relations Commission, )R *o ""1", 0ugust -+,1!!+, 1"! SCR0 576, 577%

- bonus, however, becomes a demandable or enforceable obligation when it is made part of thewage or salary or compensation of the employee. $2hilippine *ational Construction Corp ' *ationalLabor Relations Commission, - 2hil 7" 91!!!:A 2hilippine Duplicators, Inc ' *ational LaborRelations Commission, -11 2hil 6+7, 61! 91!!/:% 6articularly instructive is the ruling of the ourtin #etro @ransit Organi?ation, Inc ' *ational Labor Relations Commission, -1/ 2hil "+, "71(1!!/.where it was written"

Khether or not a bonus forms part of wages depends upon the circumstances andconditions for its payment. 0f it is additional compensation which the employer promisedand agreed to give without any conditions imposed for its payment, such as success ofbusiness or greater production or output, then it is part of the wage. ut if it is paid only ifprofits are reali84ig


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A44li$abili!y

(he applicability of the Labor ode are subject to certain exceptions such as those employed inthe civil service, those employed in government'owned and controlled corporations with special charter,involving intra'corporate controversy, employers with immunity from suit and those excluded underworking conditions and rest periods of ook 000 (itle 0 under -rticle * of the Labor ode in relation to

/ules 0, Section , 00, Section 1, /ule 0, Section 1 and /ule , Section 1, ook 000 of the Cmnibus /ules0mplementing the Labor ode.

Te! !o #e!er+i"e 3'e!'er a ,OCC i &be$! !o Ci5il Ser5i$e La3

(he Supreme ourt laid down the test to determine whether a 5C is subject to ivil ServiceLaw based on the previous ruling of *ational Ser'ice Corporation ' *LRC. -s held in 2hilippine*ational Oil Compan$8;nerg$ De'elopment Corporation, v. Leogardo, )R *o L8/"6!6 ul$ /,1!"!" (hus, under the present state of the law, the test in determining whether a government'owned orcontrolled corporation is subject to the ivil Service Law is the manner of its creation such thatgovernment corporations created by special charter are subject to its provisions while those incorporatedunder the general orporation Law are not within its coverage.M Bowever, it should be noted that even ifan entity is under the civil service law it is not completely beyond the scope of labor laws. 0n 2hilippine3isheries De'elopment 0uthorit$ ' *LRC, )R *o !6"5/, September 6, 1!!5 it was held"=otwithstanding that the petitioner is a government agency, its liabilities, which are joint and solidary withthat of the contractor, are provided in -rticles 12:, 12+ and 12) of the Labor ode. (his places thepetitionerAs liabilities under the scope of the =L/. 4oreover, ook (hree, (itle 00 on Kages specificallyprovides that the term DemployerD includes any person acting directly or indirectly in the interest of anemployer in relation to an employee and shall include the 5overnment and all its branches, subdivisionsand instrumentalities, all government'owned or controlled corporation and institutions as well as non'profitprivate institutions, or organi


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recognioreign -ffairs to the Secretary of Labor dated Gune 1+, 1)*+, where the immunity of0//0 from the jurisdiction of the ;epartment of Labor and 9mployment was sustained, the ourtstated that this opinion constituted Da categorical recognition by the 9xecutive ranch of the5overnment that . . . 0//0 enjoy$s% immunities accorded to international organi


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orollary to the cited article is the onvention on the 6rivileges and 0mmunities of theSpeciali;9 is an international agency enjoyingdiplomatic immunity. (his, we have already held in Southeast 0sian 3isheries De'elopment Center8

0Guaculture Department 's *ational Labor Relations Commission, )R *o "77-, 5+ SCR0

5"-H1!!5A see also Lacanilao ' de Leon, )R *o 7/-5, 167 SCR0, 5"H1!"7H, where we said @

6etitioner Southeast -sian >isheries ;evelopment enter'-quaculture ;epartment$S9->;9'-P;% is an international agency beyond the jurisdiction of public respondent=L/.xxx

(he then 4inister of Gustice likewise opined that 6hilippine ourts have nojurisdiction over S9->;9'-P; in Cpinion =o. 1&), Series of 1)*3 @

3. Cne of the basic immunities of an international organi


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even worse, it could compromise the desired impartiality of the organi


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personHs. (hey are not agencies of the Onited States -rmed >orces nor are their facilitiesdemandable as a matter of right by the -merican servicemen. (hese establishments provide forthe grooming needs of their customers and offer not only the basic haircut and shave $as requiredin most military organi


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fair notice of the conduct to avoid# and $% it leaves law enforcers unbridled discretion incarrying out its provisions and become an arbitrary flexing of the 5overnment muscle.

Ke added, however, that"

x x x the act must be utterly vague on its face, that is to say, it cannot be clarified byeither a saving clause or by construction. (hus, in Coates v. Cit! of Cincinnati, the O.S.Supreme ourt struck down an ordinance that had made it illegal for three or morepersons to assemble on any sidewalk and there conduct themselves in a mannerannoying to persons passing by.M learly, the ordinance imposed no standard at allbecause one may never know in advance what Rannoys some people but does notannoy others.AM

Coateshighlights what has been referred to as a perfectly vagueM act whose obscurity isevident on its face. 0t is to be distinguished, however, from legislation couched in impreciselanguage@but which nonetheless specifies a standard though defectively phrased@in whichcase, it may be savedM by proper construction.

xxx

0n support of her submission that -rticle 1& $b% is void for vagueness, appellant invokes2eople 's 2anis, 165 SCR0 6 (1!".where this ourt, to use appellantAs term, critici


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- statute may be said to be overbroad where it operates to inhibit the exercise of individualfreedoms affirmatively guaranteed by the onstitution, such as the freedom of speech or religion.

- generally worded statute, when construed to punish conduct which cannot be constitutionallypunished is unconstitutionally vague to the extent that it fails to give adequate warning of theboundary between the constitutionally permissible and the constitutionally impermissibleapplications of the statute. $ilipino worker hired directly by a foreignemployer without government intervention, may not be assured of the best possible terms and conditionsof employment. Be is not in a position to know the real financial condition of the foreign employer and theprevailing terms and conditions of employment in the host country. Cn the other hand, the 6hilippinegovernment, through its various listening posts abroad $embassies, consular offices, etc.% has up'to'dateand more or less accurate information on the conditions prevailing in foreign countries. -s the >ilipinoworker may be over'eager to find employment abroad, government intervention is necessary to protecthim from exploitation by foreign employers.M $0nnotation Illegal Recruitment of O'erseas 3ilipinoers as ;conomic Sabotage, 57! SCR0 1!! 91!!7:, b$ orge R CoGuia % Bowever, exemptedfrom this provision is the direct'hiring made by members of the diplomatic corps, internationalorgani


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c. orporations and partnerships, when any of its officers, members of the board or partners, isalso an officer, member of the board or partner of a corporation or partnership engaged in the business ofa travel agency#

d. 6ersons, partnerships or corporations which have derogatory records#e. -ny official or employee of the ;CL9, 6C9-, CKK-, ;>- and other government agencies

directly involved in the implementation of /.-. *23, otherwise known as 4igrant Korkers and Cverseas>ilipino -ct of 1))8 and!or any of his!her relatives within the fourth civil degree of consanguinity or affinity#and

f. 6ersons or partners, officers and ;irectors of corporations whose licenses have beenpreviously cancelled or revoked for violation of recruitment laws. $2art II, Section 5, Rule I, 5++5 2O;0Rules and Regulations )o'erning the Recruitment and ;mplo$ment of Land84ased O'erseasers and 2art II, Section 5, Rule I, 5++- 2O;0 Rules and Regulations )o'erning Recruitmentand ;mplo$ment of Seafarers%

T'oe $o"i#ere# 3i!' #eroga!ory re$or#

(he derogatory records refers to the existence of negative information such as but not limited tothe following"

1% (hose certified to have derogatory record or information by the =ational ureau ofinvestigation or by the -nti'0llegal /ecruitment ranch of the 6C9-#

% (hose against whom probable cause or prima facie finding of guilt for illegal recruitment orother related cases exists#

&% (hose convicted for illegal recruitment or other related cases and!or crimes involving moralturpitude# and

3% (hose agencies whose licenses have been previously revoked or cancelled by the-dministration for violation of /- *23, 6; 33 as amended and their implementing rules andregulations as well as these rules and regulations. $2art II, Section 5, Rule I, 5++5 2O;0 Rules andRegulations )o'erning the Recruitment and ;mplo$ment of Land84ased O'erseas ersand 2art II, Section 5, Rule I, 5++- 2O;0 Rules and Regulations )o'erning Recruitment and;mplo$ment of Seafarers%

=&ali-i$a!io" -or o5erea re$r&i!+e"! a"# 4la$e+e"!

Cnly those who possess the following qualifications may be permitted to engage in the businessof recruitment and placement of >ilipino workers"

a. >ilipino citi


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0n @rans 0ction O'erseas Corporation ' @he &onorable Secretar$ of Labor, )R *o1+!/"-, September /, 1!!7, the issue presented is whether or not the Secretary of Labor and9mployment has jurisdiction to cancel or revoke the license of a private fee'charging employment agency.0n resolving the issue, the Bigh ourt ruled"

(he power to suspend or cancel any license or authority to recruit employees for overseasemployment is vested upon the Secretary of Labor and 9mployment. -rticle &8 of the Laborode, as amended, which provides"

xxx

0n the case of ;astern 0ssurance and Suret$ Corp ' Secretar$ of Labor, 1"1 SCR0 11+(1!!+.we held that"

(he penalties of suspension and cancellation of license or authority are prescribedfor violations of the above quoted provisions, among others. -nd the Secretary of Laborhas the power under Section &8 of the law to apply these sanctions, as well as theauthority, conferred by Section &:, not only to Rrestrict and regulate the recruitment andplacement activities of all agencies,A but also to Rpromulgate rules and regulations to carryout the objectives and implement the provisionsA governing said activities. 6ursuant to

this rule'making power thus granted, the Secretary of Labor gave the 6C9-, $Sec 1,Rule II, 4oo> I of the *ew Rules on O'erseas ;mplo$ment% Ron its own initiative orupon filing of a complaint or report or upon request for investigation by any aggrievedperson, x x $authority to% conduct the necessary proceedings for the suspension orcancellation of the license or authority of any agency or entityA for certain enumeratedoffenses including '

xxx

(his power conferred upon the Secretary of Labor and 9mployment was echoed in 2eople 'Dia?, 5/! SCR0 661 (1!!.vi."

- non'licensee or non'holder of authority means any person, corporation or entity

which has not been issued a valid license or authority to engage in recruitment andplacement by the Secretary of Labor, or whose license or authority has been suspended,revoked or cancelled by the 6C9- or the Secretary.M $Onderscoring supplied%

xxx

(he concurrent jurisdiction of the ;epartment of Labor and 9mployment $;CL9% and the 6hilippineCverseas 9mployment -dministration $6C9-% was also affirmed by the Supreme ourt in the case ofRomero ' 2eople, )R *o 17166, *o'ember 5-, 5+11citing ;astern 0ssurance and Suret$ Corp' Secretar$ of Laborand 2eople ' Dia?.

Illegal re$r&i!+e"! $o"!i!&!i"g e$o"o+i$ abo!age

/11% /1/% //2% // a"# // Bar E*a+i"a!io"

0llegal recruitment by a syndicate and illegal recruitment in a large scale. $second paragraphSection of R0 "+65, #igrant ers and O'erseas 3ilipinos 0ct of 1!!/, as amended b$Section / of R0 1++55, and Section 5, Rule I, Omnibus Rules and Regulations Implementing the#igrant ers and O'erseas 3ilipinos 0ct of 1!!/, as amended b$ Republic 0ct *o 1++55%0llegal recruitment by a syndicate or in a large scale does not define illegal recruitment. (hey arequalifying circumstances to constitute an offense involving economic sabotage.

Illegal re$r&i!+e"! by a y"#i$a!e% 'o3 $o++i!!e#

0llegal recruitment is deemed committed by a syndicate if carried out by a group of three $&% ormore persons conspiring or confederating with one another. $second paragraph of Section of R0"+65, #igrant ers and O'erseas 3ilipinos 0ct of 1!!/, as amended b$ Section of R0 1++55%

Ele+e"! o- illegal re$r&i!+e"! by a y"#i$a!e

(he following elements must occur"

1. (he accused have no valid license or authority required by law to enable them to lawfullyengage in the recruitment and placement of workers.

. (he accused engaged in this activity of recruitment and placement by actually recruiting,deploying and transporting.

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&. 0llegal recruitment was committed by three persons conspiring and confederating with oneanother. $2eople 's &ashim, )R *os 1!65//, une 1-, 5+15%

Illegal re$r&i!+e"! i" a large $ale% 'o3 $o++i!!e#

0t is deemed committed in large scale if committed against three $&% or more persons individually

or as a group. $second paragraph Section of R0 "+65, #igrant ers and O'erseas 3ilipinos0ct of 1!!/, as amended b$ Section / of R0 1++55%

Ele+e"! o- illegal re$r&i!+e"! i" a large $ale

(he three elements of the crime of illegal recruitment in large scale, to wit"

a% the offender has no valid license or authority required by law to enable him to lawfully engagein recruitment and placement of workers#

b% the offender undertakes any of the activities within the meaning of Drecruitment and placementDunder -rticle 1&$b% of the Labor ode, or any of the prohibited practices enumerated under -rticle &3 ofthe said ode $now Section : of /epublic -ct =o. *23%# and

c% the offender committed the same against three or more persons, individually or as a group.

$2eople of the 2hilippines 's @aguina$, )R *o 1"1-5, 3ebruar$ 57, 5+15%

Di!i"$!io" o- illegal re$r&i!+e"! &"#er RA 7/0% a a+e"#e# by RA 1//% a"# !'eLabor Co#e

0llegal recruitment under Section /- *23, 4igrant Korkers and Cverseas >ilipinos -ct of 1))8,as amended by /- 122, broadened the concept of illegal recruitment $ 2eople 's )amboa, )R *o1-/-"5, September 5!,5+++%, as it includes the commission of acts $letters ato " in the second sentenceof the first paragraph of Section : of /- *23, as amended% whether $o++i!!e# by a"y 4ero", whethera "o";li$e"ee% "o";'ol#er o- a&!'ori!y% li$e"ee or 'ol#er o- a&!'ori!y , and provided for stifferpenalties $Ibid

%, while illegal recruitment as defined by -rticle &* $a% in relation to -rticle 1& $b% and &3 ofthe Labor ode is $o++i!!e#only by a "o";li$e"ee or "o";'ol#er o- a&!'ori!y.

y its terms, 4ero" 3'o e"gagein canvassing, enlisting, contracting, transporting, utiliKs, although 3i!' !'ea44ro4ria!e go5er"+e"! li$e"e or a&!'ori!y% are g&il!y o- illegal re$r&i!+e"! o"ly i- !'ey $o++i!a"y o- !'e 3ro"g-&l a$! enumerated in Section : of /- *23 as amended. $Republic of the2hilippines 's 2hilippine 0ssociation of Ser'ice ;=porters Inc (20S;I., )R *o 17/!+,*o'ember 15,5+1- consolidated with other cases%

Co5erage o- alie" e+4loy+e"! 4er+i!

//2 a"# 1 Bar E*a+i"a!io"

-ny alien seeking admission to the 6hilippines for employment purposes and any domestic orforeign employerwho desires to engage an alien for employment in the 6hilippines shall obtain anemployment permit from the ;epartment of Labor and 9mployment. $0rticle 32, Labor ode% Onder /ule0, 1, ;epartment Crder =o. +8'2: Series of 22:, issued on 4ay &1,22: E/evised /ules for the 0ssuanceof 9mployment 6ermits to >oreign =ationalsF all foreign nationals who intend to engage in gainfulemployment in the 6hilippines shall apply for -lien 9mployment 6ermit $-96%.

A44re"!i$e'i4 a"# lear"er'i4% #i!i"g&i'e#

Di!i"$!io" A44re"!i$e'i4 Lear"'i4

-s to theagreement

0n -pprenticeship, theagreement entered by theparties is known as

-pprenticeship -greement.$0rticles /" 9d:, Labor Code%#

0n learnership, the agreement entered by theparties is known as Learnership -greement$7/, Labor Code%#

-s to the period ofagreement

0n -pprenticeship, theagreement shall not be less thanfour $3% months and not morethan six $:% months# $0rticles /"9c: in relation to 0rticle 1and-1+, @;SD0 Circular *o 1,Series of 5++6%#

0n learnership, the agreement period shall notbe more than three months# $0rticle 7/ (c.,Labor Code, -1+, @;SD0 Circular *o 1,Series of 5++6%#

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-s to obligations tohire

0n apprenticeship, the enterpriseis not obliged to hire theapprentice after theapprenticeship period# $0rticles1, Labor Code, -1+, @;SD0Circular *o 1, Series of

5++6%#

0n learnership, the enterprise is obliged to hirethe learner after the learnership period$0rticle 7/ (d., Labor Code, -1+, @;SD0Circular *o 1, Series of 5++6%#

-s to pre'termination of theagreement

0n apprenticeship, upon pre'termination of the agreementthere is no regular employmentby operation of law# $0rticles/7875, Labor Code%#

0n learnership, a learner allowed or suffered towork during the first two $% months shall bedeemed regular employees if training isterminated by the employer before the end ofthe stipulated period through no fault of thelearners $0rticle 7/ (d., Labor Code%#

-s to the personhired

0n apprenticeship, the personshired as trainees is known asapprentice# $0rticles /" 9a:,Labor Code, 5, @;SD0Circular *o 1, Series of5++6%#

0n learnership, the persons hired as trainees isknown as learner $0rticles 7-, Labor Code,5, @;SD0 Circular *o 1, Series of 5++6%#

-s to thesupplement ontheoreticalinstructions

0n apprenticeship, the training onthe job is with compulsoryrelated theoretical instructions#$0rticle /" 9a:, Labor Code,Section 6 9:, R 0 77!, and 5,@;SD0 Circular *o 1, Seriesof 5++6%#

0n learnership, the practical training on the jobmay or may not be supplemented by relatedtheoretical instructions# $5, @;SD0 Circular*o 1, Series of 5++6%#

-s to the reasonsfor hiring

0n apprenticeship, the law didnot provide any reasons wherean apprentice may be hired$0rticles /!875, Labor Code%#

0n learnership, the law provides the followingreasons for hiring $1% when no experiencedworkers are available# $% the employment oflearners is necessary to prevent curtailment ofemployment opportunities# and $&% theemployment does not create unfair competition in terms of labor costs or impair or

lower working standards $0rticle 76, LaborCode%#

-s to qualifications 0n apprenticeship, thequalifications are $a% -t leastfifteen $18% years of age# $b%6ossess vocational aptitude andcapacity for appropriate tests#and $c% 6ossess the ability tocomprehend and follow oral andwritten instructions and no

justifications or reasons given bylaw for hiring# $0rticles /!,Labor Code%#

0n learnership, the law did not provide suchqualif ications. Bowever, reasons or

justifications for hiring are provided by law$0rticles 76, Labor Code%#

-s to whatoccupations hired

0n apprenticeship, theoccupations involves Dhighlytechnical industriesD whichmeans trade, business,enterprise, industry, or otheractivity, which is engaged in theapplication of advancedtechnology and apprenticeableoccupations must be approvedby (9S;-# $0rticles +, LaborCode and --, @;SD0 Circular*o 1, Series of 5++6%.

0n learnership, the occupations involves aresemi'skilled and other industrial occupationswhich are non'apprenticeable and learnableoccupations must be approved by (9S;-$0rticles 7-, Labor Code and --, @;SD0Circular *o 1, Series of 5++6%.

A44re"!i$e'i4 a"# lear"er'i4% i+ilari!ie

Si+ilari!ie A44re"!i$e'i4?Lear"er'i4

-s to the approval of theagreement!program

0n both, -pprenticeship and Learnerhsip, the contract or agreemententered by the parties is on approved $apprenticeable!learnable%occupations by (9S;- $Section 6 9: and 9n:, R 0 77!%#

-s to number ofapprentices!learners to be

0n both, the participating enterprise shall be allowed to take anapprentices or learners only up to a maximum 2 of its total regular

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hired workforce $-7, @;SD0 Circular *o 1, Series of 5++6%#-s to practical training on thejob

0n both, the apprentice or learner is on practical training on the job$0rticles /" 9a: and 7-, Labor Code%#

-s to ground for revocation of/egistration ertificates

0n both, the /egistration ertificates of companies that are not takingin apprentices or learners for two consecutive years shall be revoked.$-/, @;SD0 Circular *o 1, Series of 5++6%

-s to the wage to be paid 0n both, the apprentices or learners are entitled to receive a wageequivalent to +8 percent of the prevailing minimum wage and otherbenefits including overtime pay. $see -" @;SD0 Circular *o 1,Series of 5++6A 0rticles 1 and 7/ 9c:, Labor Code%

-s to the implementation ofapprenticeship!learnershipprograms

0n both, in the implementation of the apprenticeship and learnershipprograms are in accordance with the (9S;-'approved competency'based format. $see 15, @;SD0 Circular *o 1, Series of 5++6A

0rticles 1 and 7/ 9c:, Labor Code%0n both, graduates of the -pprenticeship!Learnership programs shallbe subjected to competency assessment. ompetency ertificateshall be issued on the basis of demonstrated competencies for eachtrade by the enterprise. $see - @;SD0 Circular *o 1, Series of5++6%

De-i"i!io" o- !er+ &"#er Re4&bli$ A$! No. 222

/1% //2 a"# 17 Bar E*a+i"a!io"

/epublic -ct =o. +++ known as 4agna arta for ;isabled 6ersonsA later the title was amended,by /epublic -ct =o. )33, as the J#agna Carta for 2ersons with Disabilit$J.(he following selectedterms are defined by /epublic -ct =o. +++, as amended, as follows"

$a% ;isabled 6ersons are those suffering from restriction of different abilities, as a result of amental, physical or sensory impairment, to perform an activity in the manner or within the rangeconsidered normal for a human being#

$b% 0mpairment is any loss, diminution or aberration of psychological, physiological, or anatomicalstructure of function#

$c% ;isability shall mean $1% a physical or mental impairment that substantially limits one or morepsychological, physiological or anatomical function of an individual or activities of such individual# $% arecord of such an impairment# or $&% being regarded as having such an impairment#

$d% Bandicap refers to a disadvantage for a given individual resulting from an impairment or adisability, that limits or prevents the functions or activity, that is considered normal given the age and sexof the individual#

j% -uxiliary Social Services are the supportive activities in the delivery of social services to themarginali


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/1 a"# 17 Bar E*a+i"a!io"

- qualified disabled employee shall be subect tothe same terms and conditions of employmentand the same compensation, pri'ileges, benefits, fringe benefits, incenti'es or allowances as aGualified able8bodied person. $second sentence, Section /, Republic 0ct *o 7577% (his means thatpersons with disability are entitled to 122 of the applicable minimum wage. Bowever, if they areemployed as apprentices or learners their wage rate shall be not less that +8 of the applicable minimumwage. $0rticles 1 and7/ of the Labor Code% ut if they are employed as learners in piece or incentive'rate jobs they are entitled to be paid in full or 122 of the minimum wage. $0rticle 7 of the LaborCode%

I"$e"!i5e -or E+4loyer

/1 Bar E*a+i"a!io"

(he following are the incentives to the employer"

$a% (o encourage the active participation of the private sector in promoting the welfare of disabledpersons and to ensure gainful employment for qualified disabled persons, adequate incentives shall beprovided to private entities which employ disabled persons.

$b% 6rivate entities that employ disabled persons who meet the required skills or qualifications,either as regular employee, apprentice or learner, shall be entitled to an additional deduction, from theirgross income, equivalent to twenty'five percent $8% of the total amount paid as salaries and wages todisabled persons" 6rovided, however, (hat such entities present proof as certified by the ;epartment ofLabor and 9mployment that disabled person are under their employ. 6rovided, further, (hat the disabledemployee is accredited with the ;epartment of Labor and 9mployment and the ;epartment of Bealth asto his disability, skills and qualifications.

$c% 6rivate entities that improved or modify their physical facilities in order to provide reasonableaccommodation for disabled persons shall also be entitled to an additional deduction from their nettaxable income, equivalent to fifty percent $82% of the direct costs of the improvements or modifications.(his section, however, does not apply to improvements or modifications of facilities required under atas

6ambansa ilang &33. $Section ", Republic 0ct *o 7577%

T'e !ra#i!io"al -o&r;-ol# !e! o- e+4loyer e+4loyee rela!io"'i4

/10% /11% /1/% //7% //% 18% 11 Bar E*a+i"a!io"

(he four elements of an employment relationship are" $a% the selection and engagement of theemployee# $b% the payment of wages# $c% the power of dismissal# and $d% the employerAs power to controlthe employeeAs conduct. $La>as sa Industri$a ng Fapatirang &aligi ng 0l$ansa82inagbu>lod ng#anggagawang 2romo ng 4urlingame ' 4urlingame Corporation, )R *o 15"--, une 1/, 5++7/56 SCR0 !+, !/, citing S$ ' Court of 0ppeals, -!" SCR0 -+1, -+78-+" (5++-.A 2acificConsultants International 0sia, Inc ' Schonfeld, )R *o 1!5+, 3ebruar$ 1!, 5++7, /1 SCR05+!, 55"%

T'e +o! $r&$ial a"# #e!er+i"a!i5e -a$!or o- e+4loy+e"! rela!io"'i4

// a"# 1 Bar E*a+i"a!io"

(he significant factor in determining the relationship of the parties is the presence or absence ofsupervisory authority to control the method and the details of performance of the service being rendered,and the degree to which the principal may intervene to exercise such control. $032 #utual 4enefit

0ssociation, Inc ' *ational Labor Relations Commission, --6 2hil 715, 7518755 91!!7:% 0n otherwords, the test is whether the employer controls or has reserved the right to control the employee, notonly as to the work done, but also as to the means and methods by which the same is accomplished.$La?aro ' Social Securit$ Commission, 67! 2hil -"/, -"!8-!+ (5++6., citing In'estment 2lanningCorporation ' Social Securit$ S$stem, 51 SCR0 !56, !5"8!5! 91!7:%

E*i!e"$e o- e+4loyer;e+4loyee rela!io"'i4 $a""o! be e*4rely re4ia!e#

// Bar E*a+i"a!io"

0t is axiomatic that the existence of an employer'employee relationship cannot be negated byexpressly repudiating it in the management contract and providing therein that the employeeM is anindependent contractor when the terms of agreement clearly show otherwise. >or, the employment status

19


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of a person is defined and prescribed by law and not by what the parties say it should be. $ Industrial@imber Corporation ' *LRC, )R *o "-1, 5+ anuar$ 1!"!, 1! SCR0 -61%

0n @abas ' California #anufacturing Co, Inc, )R *o L8"+"+ anuar$ 5, 1!"!, in findingthe existence of employer'employee relationship not on the basis of an agreement the BonorableSupreme ourt ruled in this wise" (he existence of an employer'employees relation is a question of lawand being such, it cannot be made the subject of agreement. Bence, the fact that the manpower supplyagreement between Livi and alifornia had specifically designated the former as the petitionersH employerand had absolved the latter from any liability as an employer, will not erase either partyHs obligations as anemployer, if an employer'employee relation otherwise exists between the workers and either firm. -t anyrate, since the agreement was between Livi and alifornia, they alone are bound by it, and the petitionerscannot be made to suffer from its adverse consequences.MEOnderscore ours suppliedF

@i"# o- rela!io"'i4 &"#er a bo&"#ary y!e+ arra"ge+e"!

0n a number of cases decided by the Supreme ourt, $ *ational Labor nion 's Dinglasan, !"2hil 6!, /5 (1!!.A #agboo 's 4ernardo, 7 SCR0 !/5, !/6 (1!-.A Lantaco, Sr 's Llamas, 1+"SCR0 /+5, /16 91!"1:% it was ruled that the relationship between jeepney owners!operators on one handand jeepney drivers on the other under the boundary system is that of employer'employee and not oflessor'lessee. 0t was explained that in the lease of chattels, the lessor loses complete control over thechattel leased although the lessee cannot be reckless in the use thereof, otherwise he would beresponsible for the damages to the lessor. 0n the case of jeepney owners!operators and jeepney drivers,the former exercise supervision and control over the latter. (he management of the business is in theownerHs hands. (he owner as holder of the certificate of public convenience must see to it that the driverfollows the route prescribed by the franchising authority and the rules promulgated as regards itsoperation. =ow, the fact that the drivers do not receive fixed wages but get only that in excess of the so'called DboundaryD they pay to the owner!operator is not sufficient to withdraw the relationship betweenthem from that of employer and employee. (he above doctrine was applied by analogy to therelationships between bus owner!operator and bus conductor, $Doce 's men%s CompensationCommission, 1+6 2hil !6, !6" 91!/":% auto'calesa owner!operator and driver, $Citi?ens% League of3reewor>ers 's 0bbas, 1" SCR0 71, 7- 91!:%and recently between taxi owners!operators and taxidrivers. $#artine? 's *LRC, 575 SCR0 7!-, "++ 91!!7:%

Wori"g $'olar

12 Bar E*a+i"a!io"

(here is no employer'employee relationship between students on one hand, and schools,colleges or universities on the other, where there is written agreement between them under which theformer agree to work for the latter in exchange for the privilege to study free of charge, provided thestudents are given real opportunities, including such facilities as may be reasonable and necessary tofinish their chosen courses under such agreement. $Section 16 Rule 4oo> III, Omnibus RulesImplementing the Labor Code%

T3o;!iere# !e!: E$o"o+i$ #e4e"#e"$e !e! a"# $o"!rol !e!

0n Se'illa ' Court of 0ppeals, )R *os L8611"58-, 0pril 1/, 1!"", 1+ SCR0 171, 17!81"+,citing isa$an Ste'edore @ransportation Compan$ ' Court of Industrial Relations, 15/ 2hil "17,"5+ (1!7.the Supreme ourt observed the need to consider the existing economic conditions prevailingbetween the parties, in addition to the standard of right'of'control like the inclusion of the employee in thepayrolls, to give a clearer picture in determining the existence of an employer'employee relationshipbased on an analysis of the totality of economic circumstances of the worker. (hus, the determination ofthe relationship between employer and employee depends upon the circumstances of the wholeeconomic activity, such as" $1% the extent to which the services performed are an integral part of theemployerAs business# $% the extent of the workerAs investment in equipment and facilities# $&% the natureand degree of control exercised by the employer# $3% the workerAs opportunity for profit and loss# $8% theamount of initiative, skill, judgment or foresight required for the success of the claimed independententerprise# $:% the permanency and duration of the relationship between the worker and the employer#and $+% the degree of dependency of the worker upon the employer for his continued employment in that

line of business.

(he proper standard of economic dependence is whether the worker is dependent on the allegedemployer for his continued employment in that line of business. $ 3rancisco ' *LRC )R *o 17++"7,

0ugust -1,5++ citing the foreign authorit$ of &alfert$ ' 2ulse Drug Compan$, "51 35d 51 9/thCir 1!"7:%

-ccording to the Supreme ourt in 3rancisco ' *LRC$Ibid%there are certain cases the controltest is not sufficient to give a complete picture of the relationship between the parties, owing to the

20


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complexity of such a relationship where several positions have been held by the worker. (here areinstances when, aside from the employerAs power to control the employee with respect to the means andmethods by which the work is to be accomplished, economic realities of the employment relations helpprovide a comprehensive analysis of the true classification of the individual, whether as employee,independent contractor, corporate officer or some other capacity. (hus, the better approach wouldtherefore be to adopt a two'tiered test involving" $1% the putative employerAs power to control theemployee with respect to the means and methods by which the work is to be accomplished# and $% theunderlying economic realities of the activity or relationship. (his two'tiered test would provide us with aframework of analysis, which would take into consideration the totality of circumstances surrounding thetrue nature of the relationship between the parties. (his is especially appropriate in this case where thereis no written agreement or terms of reference to base the relationship on# and due to the complexity of therelationship based on the various positions and responsibilities given to the worker over the period of thelatterAs employment.

-pplying the two'tiered test of the economic dependence test and control test in the said case of

>rancisco v. =L/, the Supreme ourt held that by applying the control test, there is no doubt thatpetitioner is an employee of Uasei orporation because she was under the direct control and supervisionof Seiji Uamura, the corporationAs (echnical onsultant. She reported for work regularly and served invarious capacities as -ccountant, Liaison Cfficer, (echnical onsultant, -cting 4anager and orporateSecretary, with substantially the same job functions, that is, rendering accounting and tax services to the

company and performing functions necessary and desirable for the proper operation of the corporationsuch as securing business permits and other licenses over an indefinite period of engagement. Onder thebroader economic reality test, the petitioner can likewise be said to be an employee of respondentcorporation because she had served the company for six years before her dismissal, receiving checkvouchers indicating her salaries!wages, benefits, 1& thmonth pay, bonuses and allowances, as well asdeductions and Social Security contributions from -ugust 1, 1))) to ;ecember 1*, 222. Khenpetitioner was designated 5eneral 4anager, respondent corporation made a report to the SSS signed by0rene allesteros. 6etitionerAs membership in the SSS as manifested by a copy of the SSS specimensignature card which was signed by the 6resident of Uasei orporation and the inclusion of her name inthe on'line inquiry system of the SSS evinces the existence of an employer'employee relationshipbetween petitioner and respondent corporation. 0t is therefore apparent that petitioner is economicallydependent on respondent corporation for her continued employment in the latterAs line of business.

0n Oro?co ' Court of 0ppeals, )R *o 1//5+7, 0ugust 1-, 5++", the Supreme ourt held theabsence of employer'employee relationship between petitioner Cro


22/66

effective safeguarding of the employeesH rights under the Labor ode. $Id at 6-!866+% E9mphasissuppliedF.

Co5erage o- Ti!le I o- Boo III (Wori"g Co"#i!io" a"# Re! 6erio#)

0t shall apply to employees in all establishments and undertakings whether for profit or not.

$0rticle "5, Labor Code%

E*e+4!io" -ro+ $o5erage o- Ti!le I% Boo III o- !'e Labor Co#e

/1 a"# // Bar E*a+i"a!io"

(he government employees, managerial employees, field personnel, members of the family ofthe employer who are dependent on him for support, domestic helpers, persons in the personal service ofanother, and workers who are paid by results. $0rticle "5, Labor Code%

Worer 3'o are 4ai# by re&l!

/11 Bar E*a+i"a!io"

(he workers paid by results, referred by -rticle *, which are excluded in ook 000 of the Laborode are those who are paid on piece'work, Dtakay,D DpakiaoD or task basis, and other non'time work.$Section 5 9e:, Rule I, 4oo> III, Omnibus Rules Implementing the Labor Code % (hey are e=cludedfrom the benefits of ook 000 if their output rates are in accordance with the standards prescribed underSection *, /ule 00, ook (hree of these regulations, or where such rates have been fixed by theSecretary of Labor and 9mployment in accordance with the aforesaid SectionM. EOnderscore suppliedF$Section 5 9e:, Rule I, 4oo> III, Omnibus Rules Implementing the Labor Code% 0n interpreting theexclusion of workers who are paid by results including those who are paid on piece'work, taka!,pakiao,or task basis from the benefits of ook 000, specifically the overtime pay, the Supreme ourt in LaborCongress of the 2hilippines ' *LRC, ) R *o 15-!-" #a$ 51, 1!!", explained the application ofSection EeF, /ule 0, ook 000, Cmnibus /ules 0mplementing the Labor ode as follows"

-s to overtime pay, the rules, however, are different. -ccording to Sec. $e%, /ule 0, ook 000of the 0mplementing /ules, workers who are paid by results including those who are paid onpiece'work, taka!,pakiao, or task basis, if their output rates are in accordance with the standardsprescribed under Sec. *, /ule 00, ook 000, of these regulations, or where such rates have beenfixed by the Secretary of Labor in accordance with the aforesaid section, are not entitled toreceive overtime pay.

Co"$e4! o- -iel# 4ero""el

D>ield personnelD shall refer to non'agricultural employees who regularly perform their dutiesaway from the principal place of business or branch office of the employer and whose actual hours ofwork in the field cannot be determined with reasonable certainty. $third paragraph, 0rt "5, Labor Code%

I"!er4re!a!io" o- !'e $la&e 3'oe !i+e a"# 4er-or+a"$e i &"&4er5ie# by !'e

e+4loyer

1 Bar E*a+i"a!io"

0n nion of 3ilipro ;mplo$ees (3;. ' i'ar r, )R *o 7!5// anuar$ 5+, 1!!5 thecontroversy centers on the interpretation of the clause Dwhose actual hours of work in the field cannot bedetermined with reasonable certainty.D 0t is undisputed that these sales personnel start their field work at*"22 a.m. after having reported to the office and come back to the office at 3"22 p.m. or 3"&2 p.m. if theyare 4akati'based. (he petitioner maintains that the period between *"22 a.m. to 3"22 or 3"&2 p.m.comprises the sales personnelHs working hours which can be determined with reasonable certainty. 0nresolving the issue, the Supreme ourt said"

(he law requires that the actual hours of work in the field be reasonably ascertained. (he

company has no way of determining whether or not these sales personnel, even if they report tothe office before *"22 a.m. prior to field work and come back at 3"&2 p.m, really spend the hoursin between in actual field work.

xxx

4oreover, the requirement that Dactual hours of work in the field cannot be determined withreasonable certaintyD must be read in conjunction with /ule 0, ook 000 of the 0mplementing/ules which provides"

22


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xxx

ontrary to the contention of the petitioner, the ourt finds that the aforementioned rule didnot add another element to the Labor ode definition of field personnel. (he clause Dwhose timeand performance is unsupervised by the employerD did not amplify but merely interpreted andexpounded the clause Dwhose actual hours of work in the field cannot be determined withreasonable certainty.D (he former clause is still within the scope and purview of -rticle * whichdefines field personnel. Bence, in deciding whether or not an employeeHs actual working hours inthe field can be determined with reasonable certainty, query must be made as to whether or notsuch employeeHs time and performance is constantly supervised by the employer.

(he SC; schedule adverted to by the petitioner does not in the least signify that these salespersonnelHs time and performance are supervised. (he purpose of this schedule is merely toensure that the sales personnel are out of the office not later than *"22 a.m. and are back in theoffice not earlier than 3"22 p.m.

Likewise, the ourt fails to see how the company can monitor the number of actual hoursspent in field work by an employee through the imposition of sanctions on absenteeism containedin the company circular of 4arch 18, 1)*3.

(he petitioner claims that the fact that these sales personnel are given incentive bonus everyquarter based on their performance is proof that their actual hours of work in the field can bedetermined with reasonable certainty.

(he ourt thinks otherwise.

(he criteria for granting incentive bonus are" $1% attaining or exceeding sales volume basedon sales target# $% good collection performance# $&% proper compliance with good markethygiene# $3% good merchandising work# $8% minimal market returns# and $:% proper truckmaintenance. $&ollo, p. 1)2%.

(he above criteria indicate that these sales personnel are given incentive bonuses precisely

because of the difficulty in measuring their actual hours of field work. (hese employees areevaluated by the result of their work and not by the actual hours of field work which are hardlysusceptible to determination.

0n San #iguel 4rewer$, Inc ' Democratic Labor Organi?ation (" SCR0 1- 91!-:%, theourt had occasion to discuss the nature of the job of a salesman. iting the case of ewel @eaCo ' la, 11" 3 5d 5+5, the ourt stated"

(he reasons for excluding an outside salesman are fairly apparent. Such a salesman,to a greater extent, works individually. (here are no restrictions respecting the time heshall work and he can earn as much or as little, within the range of his ability, as hisambition dictates. 0n lieu of overtime he ordinarily receives commissions as extracompensation. Be works away from his employerHs place of business, is not subject to

the personal supervision of his employer, and his employer has no way of knowing thenumber of hours he works per day.

Khile in that case the issue was whether or not salesmen were entitled to overtime pay, thesame rationale for their exclusion as field personnel from holiday pay benefits also applies.

E+4loyee 3'oe !i+e?4er-or+a"$e are $o"!a"!ly &4er5ie# by e+4loyer

y established jurisprudence, the following employees, although performing their duties awayfrom the principal place of business of the employer, were not considered as field personnel becausetheir time and performance were constantly supervised by the employer"

1. BUS DRIVER ' 0t is of judicial notice that along the routes that are plied by these buscompanies, there are its inspectors assigned at strategic places who board the bus and inspect thepassengers, the punched tickets, and the conductorAs reports. (here is also the mandatory once'a'week car barn or shop day, where the bus is regularly checked as to its mechanical, electrical, andhydraulic aspects, whether or not there are problems thereon as reported by the driver and!orconductor. (hey too, must be at specific place at a specified time, as they generally observe promptdeparture and arrival from their point of origin to their point of destination. 0n each and every depot,there is always the ;ispatcher whose function is precisely to see to it that the bus and its crew leavethe premises at specific times and arrive at the estimated proper time. (he driver was therefore under

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constant supervision while in the performance of this work. Be cannot be considered a field personnel.(0uto 4us @ransport S$stems, Inc ' 4autista, )R *o 1/-7 #a$ 1, 5++/)

. ISER9EN' (he employer company argued that since the work of a fisherman is performedaway from its principal place of business, it has no way of verifying his actual hours of work on thevessel. Bowever, the S ruled that during the entire course of their fishing voyage, fishermenemployed by petitioner have no choice but to remain on board its vessel. -lthough they perform non'agricultural work away from petitionerAs business offices, the fact remains that throughout the durationof their work they are under the effective control and supervision of petitioner through the vesselAspatron or master. $#ercidar 3ishing Corporation 's *LRC,)R *o 115/76, " October 1!!"%

&. TRUC@?TRAILER DRIVER' (he employee in one case was not a field personnel, as he wasbased at the principal office, with actual work hours $from :"22 a.m. to :"22 p.m.% that wereascertainable with reasonable certainty. Be averaged 1 trips per month. -nd if not driving for thecompany, he was paid 618.22 per day for cleaning and maintaining the companyHs equipment.$Duterte 's Fingswood @rading Co, Inc, )R *o 1+-5/, 6 October 5++7%

Vali#i!y o- $o+4ree# Wor Wee (CWW) $'e+e

// Bar E*a+i"a!io"

0n 4isig #anggagawa sa @r$co ' *ational Labor Relations Commission, ) R *o 1/1-+!,October 1/, 5++"the Supreme ourt affirmed the validity of compressed workweek scheme in relation tothe waiver of overtime pay and the conditions required as follows"

>inally, we do not agree with the petitionersA assertion that the 4C- is not enforceable as it iscontrary to law. (he 4C- is enforceable and binding against the petitioners. Khere it is shownthat the person making the waiver did so voluntarily, with full understanding of what he was doing,and the consideration for the quitclaim is credible and reasonable, the transaction must berecogni


25/66

with the provisions of the Labor ode or applicable ollective argaining -greement$-%#

3. -ppropriate waivers with respect to overtime premium pay for work performed in

excess of eight $*% hours a day may be devised by the parties to the agreement.8. (he effectivity and implementation of the new working time arrangement shall be by

agreement of the parties.

R&le i"5ol5i"g o" $allF

//0% 12 a"# 1 Bar E*a+i"a!io"

-n employee who is required to remain on call in the employerHs premises or so close thereto thathe cannot use the time effectively and gainfully for his own purpose shall be considered as working whileon call. $Section / 9b:, Rule I, 4oo> III, Omnibus Rules Implementing the Labor Code%

R&le o" !ra5el !i+e

/1 Bar E*a+i"a!io"

(he rule on travel time are as follows"

(ravel from home to work and work to home is not compensable(ravel office to jobsite or from jobsite to jobsite is compensable(ravel away from home is compensable

C'a"ge i" !'e 3or $'e#&le a 5ali# e*er$ie o- +a"age+e"! 4reroga!i5e

/11 Bar E*a+i"a!io"

0n Sime Darb$ 2ilipinas, Inc ' *LRC, ) R *o 11!+/, 0pril 1/, 1!!", the Supreme ourtsustained the change in the work schedule and the elimination of the &2'minute paid lunch break of the

factory workers as valid exercise of management prerogative as follows" (he right to fix the workschedules of the employees rests principally on their employer. 0n the instant case petitioner, as theemployer, cites as reason for the adjustment the efficient conduct of its business operations and itsimproved production. 0t rationalior a full one'hour undisturbed lunch break, the employees can freely and effectively usethis hour not only for eating but also for their rest and comfort which are conducive to more efficiency andbetter performance in their work. Since the employees are no longer required to work during this one'hour lunch break, there is no more need for them to be compensated for this period. Ke agree with theLabor -rbiter that the new work schedule fully complies with the daily work period of eight $*% hours

without violating the Labor ode. esides, the new schedule applies to all employees in the factorysimilarly situated whether they are union members or not.

Nig'! S'i-! Di--ere"!ial (NSD)

/11 a"# // Bar E*a+i"a!io"

=ight Shift ;ifferential $=S;% refers to the additional compensation of ten percent $12% of anemployeeAs regular wage for each hour of work performed between ten oAclock in the evening to sixoAclock in the morning. $0rticle ", Labor Code H)#0 *etwor> Inc ' 2abriga, ) R *o 1761!,*o'ember 57, 5+1-%

E*$le# -ro+ Nig'! S'i-! Di--ere"!ial (NSD)

(he following are excluded from entitlement to night shift differential"

$a% (hose of the government and any of its political subdivisions, including government'ownedand!or controlled corporations#

$b% (hose of retail and service establishments regularly employing not more than five $8% workers#$c% ;omestic helpers and persons in the personal service of another#$d% 4anagerial employees as defined in ook (hree of this ode#

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$e% >ield personnel and other employees whose time and performance is unsupervised by theemployer including those who are engaged on task or contract basis, purely commission basis, or thosewho are paid a fixed amount for performing work irrespective of the time consumed in the performancethereof. $Section 1, Rule II, 4oo> III, Omnibus Rules Implementing the Labor Code%

O5er!i+e 4ay% #e-i"e#

/1% /1% /11% /1/% //% 1 a"# 1 Bar E*a+i"a!io"

Cvertime pay refers to the additional compensation for work performed beyond eight $*% hours aday. $&andboo> on erEs Statutor$ #onetar$ 4enefits, 5+16 ;dition, page 1"%

E*$le# -ro+ o5er!i+e 4ay

/1 Bar E*a+i"a!io"

(he following are excluded from overtime pay"

$a% 5overnment employees whether employed by the =ational 5overnment orany of its politicalsubdivision, including those employed in government'owned and!or controlled corporations#

$b% 4anagerial employees, if they meet all of the following conditions"$c% Cfficers or members of a managerial staff$d% ;omestic servants and persons in the personal service of another$e% Korkers who are paid by results, including those who are paid on piece'work, Dtakay,D

DpakiaoD or task basis, and other non'time work if their output rates are in accordance with the standardsprescribed under Section *, /ule 00, ook (hree of these regulations, or where such rates have beenfixed by the Secretary of Labor and 9mployment in accordance with the aforesaid Section.cralaw

$f% =on'agricultural field personnel if they regularly perform their duties away from the principal orbranch office or place of business of the employer and whose actual hours of work in the field cannot bedetermined with reasonable certainty. $Section 5, Rule I, Omnibus Rules Implementing the LaborCode%

Co+4&!a!io" o- o5er!i+e 4ay

(he a"#boo o" WorerG S!a!&!ory 9o"e!ary Be"e-i!% /10 E#i!io", $see pages 1*'1)%provided the following guide on the computation of overtime pay and illustrated as follows"

(he CL- shall not be included in the computation of overtime pay. (he minimum overtime payrates vary according to the day the overtime work is performed, as follows"

1. >or work in excess of eight $*% hours performed on ordinary working days" 6lus 8 of thehourly rate.. >or work in excess of eight $*% hours performed on a scheduled rest day or a special day" 6lus&2 of the hourly rate on said days.&. >or work in excess of eight $*% hours performed on a special day which falls on a scheduledrest day" 6lus 82 of the hourly rate on said days.

3. >or work in excess of eight $*% hours performed on a regular holiday" 6lus &2 of the hourlyrate on said days.8. >or work in excess of eight $*% hours performed on a regular holiday which falls on a scheduledrest day" 6lus &2 of the hourly rate on said days.

S!i4&la!e# O5er!i+e Ra!e

/1 Bar E*a+i"a!io"

5enerally, the premium pay for work performed on rest days, special days, or regular holidays isincluded as part of the regular rate of the employee in the computation of overtime pay for overtime workrendered on said days, especially if the employer pays only the minimum overtime rates prescribed bylaw. (he employees and employer, however, may stipulate in their collective agreement the payment for

overtime work at rates higher than those provided by law. $&andboo> on erEs Statutor$ #onetar$4enefits, 5+16 ;dition, page 1!%

U"#er!i+e #&ri"g 'i reg&lar #aily 3or $a""o! be #e#&$!e# i" o5er!i+e 3or

//% 12 a"# 1 Bar E*a+i"a!io"

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Ondertime work on any particular day shall not be offset by overtime work on any other day.6ermission given to the employee to go on leave on some other day of the week shall not exempt theemployer from paying the additional compensation required in this hapter. $0rt "", Labor Code%

(he rule on offsetting of undertime with overtime has been resolved by the Supreme ourt in thecase of *ational s and Sewerage 0uthorit$ ' * III, Omnibus RulesImplementing the Labor Code%

E*$e4!io" 3'ere a" e+4loyee $a" be re III, Omnibus RulesImplementing the Labor Code%

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Co+4e"a!io" o" re! #ay?S&"#ay?'oli#ay

/11 a"# // Bar E*a+i"a!io"(he a"#boo o" WorerG S!a!&!ory 9o"e!ary Be"e-i!% /10 E#i!io", $see page 1+%

provided the following guide on the computation of premium pay and illustrated as follows"

(he CL- shall not be included in the computation of premium pay. (he minimum statutorypremium pay rates are as follows"

1. >or work performed on rest days or on special days" 6lus &2 of the daily basic rate of 122or a total of 1&2.

. >or work performed on a rest day which is also a special day" 6lus 82 of the daily basic rateof 122 or a total of 182.

&. >or work performed on a regular holiday which is also the employeeAs rest day $not applicableto employees who are not covered by the holiday'pay rule%.6lus &2 of the regular holiday rate of 22 based on his!her daily basic wage rate or a totalof :2.

1 Reg&lar oli#ay a"# Na!io"3i#e S4e$ial Day

/1 Bar E*a+i"a!io"

-ccording to Section 5 (a. and (b., Chapter 7, 4oo> I of ;=ecuti'e Order *o 5!5, otherwise>nown as J@he 0dministrati'e Code of 1!"7J, as amended b$ Republic 0ct !"6! "

Onless otherwise modified by law, order, or proclamation, the following regular holidays andspecial days shall be observed in the country"

D$a% /egular Bolidays

=ew VearAs ;ay Ganuary 14aundy (hursday 4ovable ;ate

5ood >riday 4ovable ;ate9idl >itr 4ovable ;ate9idl -dha 4ovable ;ate

-raw ng Uagitingan 4onday nearest -pril )Labor ;ay 4onday nearest 4ay 10ndependence ;ay 4onday nearest Gune 1=ational BeroesA ;ay Last 4onday of -ugustonifacio ;ay 4onday nearest =ovember &2hristmas ;ay ;ecember 8/i


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$e% >ield personnel and other employees whose time and performance is unsupervised by theemployer including those who are engaged on task or contract basis, purely commission basis, or thosewho are paid a fixed amount for performing work irrespective of the time consumed in the performancethereof. $Section 1, Rule I, 4oo> III, Omnibus Rules Implementing the Labor Code %

R&le o" abe"$e

/1/ Bar E*a+i"a!io"

(he rule on absences during holidays are as follows"

$a% -ll covered employees shall be entitled to the benefit provided herein when they are on leaveof absence with pay. 9mployees who are on leave of absence without pay on the day immediatelypreceding a regular holiday may not be paid the required holiday pay if he has not worked on such regularholiday.

$b% 9mployees shall grant the same percentage of the holiday pay as the benefit granted bycompetent authority in the form of employeeHs compensation or social security payment, whichever ishigher, if they are not reporting for work while on such benefits.

$c% Khere the day immediately preceding the holiday is a non'working day in the establishment orthe scheduled rest day of the employee, he shall not be deemed to be on leave of absence on that day, inwhich case he shall be entitled to the holiday pay if he worked on the day immediately preceding the non'working day or rest day. $Section , Rule I, 4oo> III, Omnibus Rules Implementing the Labor Code %

R&le o" !3o reg&lar 'oli#ay o" !'e a+e #ay

/1/ a"# // Bar E*a+i"a!io"

(he rule on two regular holidays which falls on the same has been explained in the ;=planator$4ulletin, dated #arch 11, 1!!-, issued b$ the Department of Labor and ;mplo$ment 9DOL;:,through ndersecretar$ Cresenciano 4 @raano, cited by the Supreme ourt in the landmark case of

0sian @ransmission Corporation ' Court of 0ppeals )R *o 1666, #arch 1/, 5++6. (he bulletinreads"

DCn the correct payment of holiday compensation on -pril ), 1))& which apart frombeing 5ood >riday is alsoAraw ng )agitingan, i.e., !3o reg&lar 'oli#ay -alli"g o" !'ea+e #ay, this ;epartment is of the view that the covered employees are entitled to atleast two hundred percent $22% of their basic wage even if said holiday is unworked.(he first 122 represents the payment of holiday pay on -pril ), 1))& as 5ood >ridayand the second 122 is the payment of holiday pay for the same date as -raw ngUagitingan.

Said bulletin was reproduced on Ganuary &, 1))*, when -pril ), 1))* was both 4aundy(hursday andAraw ng )agitinganx x x x

(he foregoing rule are simply stated"

1. 0f unworked ' the employee is entitled to 22 $the first 122 represents the payment ofholiday pay on -pril ), 1))& as 5ood >riday and the second 122 is the payment of holiday pay for thesame date as -raw ng Uagitingan% of their basic wage# and

. 0f worked the employee is entitled to &22 of the basic wage. $the 122 in addition to22 represents the basic pay for working not more than eight hours%

Rig'! !o er5i$e i"$e"!i5e lea5e

/1% /1 a"# /11 Bar E*a+i"a!io"

9very employee who has rendered at least one year of service shall be entitled to a yearlyservice incentive leave of five days with pay. $0rticle !/, Labor Code and Section 5, Rule , 4oo> III,

Omnibus Rules Implementing the Labor Code%De-i"i!io" o- a! lea! o"e;year er5i$e

(he term Dat least one'year serviceD shall mean service for not less than 1 months, whethercontinuous or broken reckoned from the date the employee started working, including authori


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shall be considered as one year. $Section -, Rule , 4oo> III, Omnibus Rules Implementing the LaborCode%

E*$l&io" -ro+ e"!i!le+e"! o- Ser5i$e I"$e"!i5e Lea5e &"#er Boo III% R&le V

(he following are excluded from entitlement to service incentive leave"

$a% (hose of the government and any of its political subdivisions, including government'ownedand controlled corporations#

$b% ;omestic helpers and persons in the personal service of another# $see Sec 5!, R0 1+-1%$c% 4anagerial employees as defined in ook (hree of this ode#$d% >ield personnel and other employees whose performance is unsupervised by the employer

including those who are engaged on task or contract basis, purely commission basis, or those who arepaid a fixed amount for performing work irrespective of the time consumed in the performance thereof#

$e% (hose who are already enjoying the benefit herein provided#$f% (hose enjoying vacation leave with pay of at least five days# and$g% (hose employed in establishments regularly employing less than ten employees. $Section 1,

Rule , 4oo> III, Omnibus Rules Implementing the Labor Code%

Do+e!i$ 3orerG? @aa+ba'ayG e"!i!le+e"! !o er5i$e i"$e"!i5e lea5e

- domestic worker who has rendered at least one $1% year of service shall be entitled to an annualservice incentive leave of five $8% days with pay" 'rovided, (hat any unused portion of said annual leaveshall not be cumulative or carried over to the succeeding years. Onused leaves shall not be convertible tocash. $Section 5!, Republic 0ct *o 1+-1%

I"!er4re!a!io" o- R&le V% Se$!io" 1 (e)% Boo III% IRR i" rela!io" !o Ar!.

/1/ Bar E*a+i"a!io"

0n interpreting -rticle )8 in relation to /ule , Section 1 $e%, ook 000, of the 0// the Supremeourt in Da'id ' #acasio, )R *o 1!/6, ul$ +5, 5+16 explained the entitlement of those engagedonpak!aw or task basisto service incentive leave by re'visiting the provisions on service incentive leave.

(hus, the Bigh ourt elucidated the following"

2ro'isions go'erning SIL ====

-rticle * of the Labor ode provides the exclusions from the coverageof (itle 0, ook 000 ofthe Labor ode ' provisions governing working conditions and rest periods.

-rt. *. overage. @ T'e 4ro5iio" o- HTi!le I 'all a44ly toemployees in all establishments and undertakings whether for profit ornot, b&! "o! !o government employees, managerial employees, -iel#4ero""el, members of the family of the employer who are dependenton him for support, domestic helpers, persons in the personal service ofanother, a"# 3orer 3'o are 4ai# by re&l! a #e!er+i"e# by !'e

Se$re!ary o- Labor i" a44ro4ria!e reg&la!io".xxxx

*ield personnelM shall refer to non'agricultural employees who regularlyperform their duties away from the principal place of business or branchoffice of the employer and whose actual hours of work in the field cannotbe determined with reasonable certainty. Eemphases and underscoresoursF

-mong the (itle 0 provisions are the provisions on xxxx and S0L pay $under -rticle )8 of theLabor ode%. Onder -rticle *, field personnelM on one hand and workers who are paid byresultsM on the other hand, are not covered by the (itle 0 provisions. (he wordings of -rticle * ofthe Labor ode additionally categori -% pertinently provides"

-rt. )8. /ight to service incentive. $a% 9very employee who has rendered at least oneyear of service shall be entitled to a yearly service incentive leave of five days with pay.

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$b% (his provision shall not apply to those who are already enjoying the benefit hereinprovided, those enjoying vacation leave with pay of at least five days and those employedin establishments regularly employing less than ten employees or in establishmentsexempted from granting this benefit by the Secretary of Labor and 9mployment afterconsidering the viability or financial condition of such establishment. Eemphases oursFxxxx

Section 1. overage. I (his rule shall apply to all employees except"xxxx

$e% iel# 4ero""el a"# o!'er e+4loyee 3'oe 4er-or+a"$e i &"&4er5ie# by!'e e+4loyer including !'oe 3'o are e"gage# o" !a or $o"!ra$! bai% 4&rely$o++iio" bai, or those who are paid a fixed amount for performing workirrespective of the time consumed in the performance thereof. Eemphasis oursF

Onder these provisions, !'e ge"eral r&le is that xxxx and S0L pay provisions cover allemployees. (o be excluded from their coverage, an employee must be one of those that theseprovisions expressly exempt, strictly in accordance with the exemption.

Onder the 0//, exemption from the coverage of xxxx and S0L pay refer to field personnel andother employees whose time and performance is unsupervised by the employer including thosewho are engaged on task or contract basisE.FM =ote that unli>e 0rticle "5 of the Labor Code, the0// on xxxx and S0L pay do not exclude employees engaged on task basisM as a separate anddistinct category from employees classified as field personnel.M /ather, these employees arealtogether merged into one classification of exempted employees.

ecause of this difference, it may be argued that the Labor ode may be interpreted to meanthat those who are engaged on task basis, per se, are excluded from the S0L and xxxx paymentsince this is what the Labor ode provisions, in contrast with the 0//, strongly suggest. (hearguable interpretation of this rule may be conceded to be within the discretion granted to the L-and =L/ as the quasi'judicial bodies with expertise on labor matters.

Bowever, as early as 1)*+ in the case of Cebu Institute of @echnolog$ ' Ople)R *o L8/""7+, 1" December 1!"7the phrase those who are engaged on task or contract basisM in therule has already been interpreted to mean as follows"

Ethe phraseF should however, be related with Dfield personnelD applying the rule onejusdem generis that general and unlimited terms are restrained and limited by theparticular terms that they follow xxx learly, petitionerHs teaching personnel cannot bedeemed field personnel which refers Dto non'agricultural employees who regularlyperform their duties away from the principal place of business or branch office of theemployer and whose actual hours of work in the field cannot be determined withreasonable certainty. E6ar. &, -rticle *, Labor ode of the 6hilippinesF. 6etitionerHs claimthat private respondents are not entitled to the service incentive leave benefit cannottherefore be sustained.

0n short, the payment of an employee on task orpak!awbasis alone is insufficient to excludeone from the coverage of S0L and xxxx. (hey are exempted from the coverage of (itle 0 $includingthe xxxx and S0L pay% only if they qualify as field personnel.M (he 0// therefore validly qualifiesand limits the general exclusion of workers paid by resultsM found in -rticle * from the coverageof xxxx and S0L pay. (his is the only reasonable interpretation since the determination ofexcluded workers who are paid by results from the coverage of (itle 0 is determined by theSecretary of Labor in appropriate regulations.M

(he Cebu #nstitute Technolog!ruling was reiterated in 228 inAuto +us Transport $!stems,#nc., v. +autista"

- careful perusal of said provisions of law will result in the conclusion that the grant ofservice incentive leave has been delimited by the 0mplementing /ules and /egulations ofthe Labor ode to apply only to those employees not explicitly excluded by Section 1 of/ule . -ccording to the 0mplementing /ules, Service 0ncentive Leave shall not apply toemployees classified as field personnel.M (he phrase other employees whoseperformance is unsupervised by the employerM must not be understood as a separateclassification of employees to which service incentive leave shall not be granted. /ather,it serves as an amplification of the interpretation of the definition of field personnel underthe Labor ode as those whose actual hours of work in the field cannot be determinedwith reasonable certainty.M

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(he same is true with respect to the phrase those who are engaged on task orcontract basis, purel! commission basis.M Said phrase should be related with fieldpersonnel,M applying the rule onejusdem generis that general and unlimited terms arerestrained and limited by the particular terms that they follow.

(heAutobusruling was in turn the basis of $errano v. $antos Transit which the - cited insupport of granting 4acasioAs petition.

0n $errano, the ourt, applying the rule on ejusdem generis $@he general and unlimitedterms are restrained and limited b$ the particular terms that the$ follow% declared thate+4loyee e"gage# o" !a or $o"!ra$! bai *** are "o! a&!o+a!i$ally e*e+4!e# -ro+!'e gra"! o- er5i$e i"$e"!i5e lea5e% &"le% !'ey -all &"#er !'e $lai-i$a!io" o- -iel#4ero""el.F (Serrano ' Se'erino Santos @ransit, supra note 55, at 6!586!-A emphasissupplied, underscore ours) (he ourt explained that the phrase including those who areengaged on task or contract basis, purel! commission basisM found in Section 1$d%, /ule ofook 000 of the 0// should not be understood as a separate classification of employees to whichS0L shall not be granted. /ather, as with its preceding phrase ' other employees whose

performance is unsupervised b! the emplo!erM ' the phrase including those who are engaged ontask or contract basisM serves to amplify the interpretation of the Labor ode definition of field

personnelM as those whose actual hours of work in the field cannot be determined withreasonable certainty.M

xxx

0n short, in determining whether workers engaged on pak!awM or task basisM is entitled to xxxand S0L pay, the presence $or absence% of employer supervision as regards the workerAs time andperformance is the key" if the worker is simply engaged on pak!awor task basis, then thege"eral r&le is that he is entitled to xxx and S0L pay unless exempted from the exceptionsspecifically provided under -rticle )3 $holiday pay% and xxxx of the Labor ode. Bowever, if theworker engaged onpak!aw or task basis also falls within the meaning of field personnelM underthe law, then he is not entitled to these monetary benefits.

Trea!+e"! o- be"e-i!

/11 Bar E*a+i"a!io"

(he service incentive leave shall be commutable to its money equivalent if not used or exhaustedat the end of the year. $Section /, Rule , 4oo> III, Omnibus Rules Implementing the Labor Code %

O!'er lea5e 4ro5i#e# by la3

Re4&bli$ A$! No. 7172 "o3" a 2aternit$ Lea'e 0ct of 1!!

/1% /1% //% // Bar E*a+i"a!io"

Coverage

9very married male employee in the private sector shall be entitled to paternity leavebenefits of seven $+% days with full pay for the first four deliveries by his lawful spouse under suchterms and conditions as hereinafter provided. (he rules on paternity leave of employees in thepublic sector shall be promulgated by the ivil Service ommission. $Section 5, Re'isedImplementing Rules and Regulations of Republic 0ct *o "1"7 for the 2ri'ate Sector%

Conditions to entitlement of paternit! leave benefits

- married male employee shall be entitled to paternity benefits provided that"

a. he is an employee at the time of delivery of his child#

b. he is cohabiting with his spouse at the time she gives birth or suffers a miscarriage.c. he has applied for paternity leave in accordance with Section 3 hereof# andd. his wife has given birth or suffered a miscarriage. $Section -, Re'ised Implementing Rules

and Regulations of Republic 0ct *o "1"7 for the 2ri'ate Sector%

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9a!er"i!y Lea5e &"#er Re4&bli$ A$! No. 77

/1% /1/% // a"# /// Bar E*a+i"a!io"

Conditions for entitlement under $ection 4-A of &. A. (o. //

- female member who has paid at least three $&% monthly contributions in the twelve'month period immediately preceding the semester of her childbirth or miscarriage shall be paid adaily maternity benefit equivalent to one hundred percent $122% of her average daily salarycredit for sixty $:2% days or seventy'eight $+*% days in case of caesarian delivery, subject to thefollowing conditions"

$a% (hat the employee shall have notified her employer of her pregnancy and theprobable date of her childbirth, which notice shall be transmitted to the SSS in accordance withthe rules and regulations it may provide#

$b% (he full payment shall be advanced by the employer within thirty $&2% days from thefiling of the maternity leave application#

$c% (hat payment of daily maternity benefits shall be a bar to the recovery of sicknessbenefits 'rovidedby this -ct for the same period for which daily maternity benefits have beenreceived#

$d% (hat the maternity benefits 'rovidedunder this section shall be paid only for the firstfour $3% deliveries or miscarriages#

$e% (hat the SSS shall immediately reimburse the employer of one hundred percent$122% of the amount of maternity benefits advanced to the employee by the employer uponreceipt of satisfactory proof of such payment and legality thereof# and

$f% (hat if an employee member should give birth or suffer miscarriage without therequired contributions having been remitted for her by her employer to the SSS, or without thelatter having been previously notified by the employer of the time of the pregnancy, the employershall pay to the SSS damages equivalent to the benefits which said employee member wouldotherwise have been entitled to. $Section 1680, Republic 0ct *o "5"5%

6are"!al Lea5e -or Solo 6are"! &"#er Re4&bli$ A$! No. 72

/11 Bar E*a+i"a!io"

Solo 6arent is any individual who falls under any of the following categories"

1. - woman who gives birth as a result of rape and other crimes against chastity evenwithout a final conviction of the offender, provided that mother keeps and raises the child.

. 6arent left solo or alone with the responsibility of parenthood due to the followingcircumstances"

a. to death of spouse#b. while the spouse is detained or is serving sentence for a criminal conviction for

at least one $1% year#

c. due to physical and!or mental incapacity of spouse as certified by a publicmedical practitioner#

d. due to legal separation or de facto separation from spouse for at least one $1%year, as long as he!she is entrusted with the custody of the children#

e. due to declaration of nullity or annulment of marriage as decreed by a court orby a church as long as he!she is entrusted with the custody of the children#

f. due to abandonment of spouse for at least one $1% year#&. Onmarried mother!father who has preferred to keep and rear her!his child!children

instead of having others care for them or give them up to a welfare institution.3. -ny other person who solely provides parental care and support to a child or children.8. -ny family member who assumes the responsibility of head of family as a result of the

death, abandonment, disappearance or prolonged absence of the parents or solo parent.

Conditions for 0ntitlement of 'arental Leave

- solo parent shall be entitled to parental leave provided that"

$a% Be!She has rendered at least one $1% year of service whether continuous or broken atthe time of the affectivity of the -ct#

$b% Be!She has notified his!her employer of the availment thereof within a reasonabletime period# and

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$c% Be!She has presented a Solo 6arent 0dentification ard to his!her employer. $Section1!, Rules and Regulations Implementing Republic 0ct "!75%

Lea5e -or Vi$!i+ o- VAWC &"#er Re4&bli$ A$! 8

/11 Bar E*a+i"a!io"

. 0ntitled to Leave

ictims under this -ct shall be entitled to take a paid leave of absence up to ten $12% days inaddition to other paid leaves under the Labor ode and ivil Service /ules and /egulations, extendiblewhen the necessity arises as specified in the protection order.

-ny employer who shall prejudice the right of the person under this section shall be penalior government employees, in addition to the aforementioned certification, the employeeconcerned must file an application for leave citing as basis /.-. ):.

(he administrative enforcement of this leave entitlement shall be considered within the jurisdictionof the /egional ;irector of the ;CL9 under -rticle 1) of the Labor ode of the 6hilippines, as amended,

for employees in the private sector, and the ivil Service ommission, for government employees.

(he availment of the ten day'leave shall be at the option of the woman employee, which shallcover the days that she has to attend to medical and legal concerns. Leaves not availed of arenoncumulative and not convertible to cash.

(he employer!agency head who denies the application for leave, and who shall prejudice thevictim'survivor or any person for assisting a co'employee who is a victim'survivor under the -ct shall beheld liable for discrimination and violation of /.- ):.

(he provision of the Labor ode and the ivil Service /ules and /egulations shall govern thepenalty to be imposed on the said employer!agency head. $Section 65, Rule I, @he Rules andRegulations Implementing the 0nti8iolence 0gainst III, Omnibus Rules Implementing the Labor Code%

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Di!rib&!io" o- er5i$e $'arge

-ll service charges collected by covered employers shall be distributed at the rate of *8 for theemployees and 18 for the management. (he *8 shall be distributed equally among the covered

employees. (he 18 shall be for the disposition by management to answer for losses and breakages anddistribution to managerial employees at the discretion of the management in the latter case. $ Section -,Rule I, 4oo> III, Omnibus Rules Implementing the Labor Code%

re III, Omnibus Rules Implementing the Labor Code%

I"!egra!io" o- er5i$e $'arge

0n case the service charges is abolished the share of covered employees shall be considered

integrated in their wages. $0rticle !, Labor Code%

Bai o- !'e i"!egra!e# a+o&"!

(he basis of the amount to be integrated shall be the average monthly share of each employeefor the past twelve $1% months immediately preceding the abolition of withdrawal of such charges.$Section /, Rule I, 4oo> III, Omnibus Rules Implementing the Labor Code%

W'e" Ar!i$le 8 o- !'e Labor Co#e i "o! a44li$able

/1 a"# /1 Bar E*a+i"a!io"

0n explaining the instance when -rticle ): on service charges is not applicable, the Supreme

ourt in the case of *ational nion of ers in &otel Restaurant and 0llied Industries(*


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$*o 1 in relation to *o 5, Re'ised )uidelines on the Implementation of the 1- th#onth 2a$ Law,dated *o'ember 1, 1!"7%

1!' 9o"!' 6ay -or Cer!ai" Ty4e o- E+4loyee

(he following types of employees are entitled to 1&thmonth pay

$a% 9mployees 6aid by /esults. @ 9mployees who are paid on piece work basis are by lawentitled to the 1&th month pay.

9mployees who are paid a fixed or guaranteed wage plus commission are also entitled to themandated 1&th month pay, based on their total earnings during the calendar year, i.e., on both their fixedor guaranteed wage and commission.

$b% (hose with 4ultiple 9mployers. @ 5overnment employees working part time in a privateenterprise, including private educational institutions, as well as

NOTES ON CRITICAL AREAS IN LABOR LAW PART II.doc

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