LABOR STANDARDS – Atty. SagmitGENERAL PROVISIONS

ARTICLE 3. Declaration of basic policy. - The State shall afford protection to labor, promote fullemployment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. (PPER-SCSJ)

ARTICLE II – Declaration of Principles and State PoliciesSection 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

ARTICLE XIII – Social Justice and Human RightsProtection to Labor ClauseSection 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.

Cardinal Rights of Workers – (OCESWWP)1. to organize themselves, 2. to conduct collective bargaining or negotiation

with management, 3. to engage in peaceful concerted activities,

including to strike in accordance with law, 4. to enjoy security of tenure, 5. to work under humane conditions, 6. to receive a living wage, 7. to participate in policy and decision making

processes affecting their rights and benefits as may be provided by law.

ARTICLE 4. Construction in favor of labor. - All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.

Management Rights – (RPST)1. Right to ROI (Return on Investment)2. Rights to Prescribe Rules3. Right to Select Employees4. Right to Transfer or Discharge Employees

PRE-EMPLOYMENTA. REECRUITMENT AND PLACEMENT OF WORKERS1. State PolicyARTICLE 12. Statement of objectives. – It is the policy of the State:

a. To promote and maintain a state of full employment through improved manpower training, allocation and utilization;

b. To protect every citizen desiring to work locally or overseas by securing for him the best possible terms and conditions of employment;

c. To facilitate a free choice of available employment by persons seeking work in conformity with the national interest;

d. To facilitate and regulate the movement of workers in conformity with the national interest;

e. To regulate the employment of aliens, including the establishment of a registration and/or work permit system;

f. To strengthen the network of public employment offices and rationalize the participation of the private sector in the recruitment and placement of workers, locally and overseas, to serve national development objectives;

g. To insure careful selection of Filipino workers for overseas employment in order to protect the good name of the Philippines abroad.

2. DefinitionARTICLE 13. Definitions. – (b) “Recruitment and placement” refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee, employment to two or more persons shall be deemed engaged in recruitment and placement. (CECTUHP-RCSPA)

3. Power and Authority of Sec.ARTICLE 14. Employment promotion. – The Secretary of Labor shall have the power and authority:a. To organize and establish new employment offices

in addition to the existing employment offices under the Department of Labor as the need arises;

b. To organize and establish a nationwide job clearance and information system to inform applicants registering with a particular employment office of job opportunities in other parts of the country as well as job opportunities abroad;

c. To develop and organize a program that will facilitate occupational, industrial and geographical mobility of labor and provide assistance in the relocation of workers from one area to another; and

d. To require any person, establishment, organization or institution to submit such employment information as may be prescribed by the Secretary of Labor.

Entities authorized to engage in recruitment and placement (PoPePaSPCMO)

1. Public employment offices2. Private recruitment entities3. Private employment agencies4. Shipping or manning agents or representatives5. POEA6. Construction contractors if authorized to

operate by DOLE and the Construction Industry Authority

7. Members of the diplomatic corps although hirings done by them have to be processed through the POEA

8. Other persons or entities as may be authorized by the DOLE Secretary.

RA 8042/RA 10022Sec. 3 (a) "Overseas Filipino worker" refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a state of which he or she is not a citizen or on board a vessel navigating the foreign seas other than a government ship used for miliatry or non-commercial purposes or on an installation located offshore or on the high seas; to be used interchangeably with migrant worker.

SEC. 4. Deployment of Migrant Workers. - The State shall allow the deployment of overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as a guarantee on the part of the receiving country for the protection of the rights of overseas Filipino workers:

a. It has existing labor and social laws protecting the rights of workers, including migrant workers;

b. It is a signatory to and/or a ratifier of multilateral conventions, declarations or resolutions relating to the protection of workers, including migrant workers; and

c. It has concluded a bilateral agreement or arrangement with the government on the protection of the rights of overseas Filipino Workers:

Provided, That the receiving country is taking positive, concrete measures to protect the rights of migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b) and (c) hereof.In the absence of a clear showing that any of the aforementioned guarantees exists in the country of destination of the migrant workers, no permit for deployment shall be issued by the Philippine Overseas Employment Administration (POEA).

Jurisdiction of the POEA Section 6. Jurisdiction of the POEA. The POEA shall exercise original and exclusive jurisdiction to hear and decide:

a. all cases which are administrative in character, involving or arising out of violations of Rules and Regulations relating to licensing and registration, including refund of fees collected from the workers and violation of the conditions for issuance of license to recruit workers; (Based on jurisdictional areas under the POEA Charter or E.O. 247, as amended.)

b. disciplinary action cases and other special cases, which are administrative in character, involving employers, principals, contracting partners and OFWs processed by the POEA.

Grounds for Disciplinary Actions1. Commission of a felony punishable by Philippine

laws or laws of host country;2. Drug addiction or possession or trafficking of

prohibited drugs;3. Desertion or abandonment;4. Gambling;5. Initiating or joining a strike, where prohibited;6. Creating trouble at the work site;7. Embezzlement of company funds or other

properties;8. Theft or robbery;9. Prostitution;10. Vandalism;11. Gunrunning or possession of deadly weapons;

12. Unjust refusal to depart for a worksite after all documents have been prepared;

13. Violations of the law and sacred practices of the host country and unjustified breach of the employment contract.

Jurisdiction of the NLRCSEC. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor Arbiters of the NLRC shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the 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. Consistent with this mandate, the NLRC shall endeavor to update and keep abreast with the developments in the global services industry.

The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to de filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages.

Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this section shall be paid within thirty (30) days from approval of the settlement by the appropriate authority.

In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions from the migrant worker's salary, the worker shall be entitled to the full reimbursement of his placement fee and the deductions made with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.(Money claims BEFORE July 15, 1995 is within the jurisdiction of the POEA. AFTER July 1995 jurisdiction is within the NLRC)Gen. Rule: ARTICLE 18. Ban on direct-hiring. — No (foreign principal or) employer may hire a Filipino

worker for overseas employment except through the boards and entities authorized by the Secretary of Labor.

Exceptions:1. diplomatic corps, 2. international organizations, and 3. such other employers as may be allowed by the

Secretary of Labor4. name hires

Name Hires are those individual workers who are able to secure contracts for overseas employment on their own efforts and representations without the assistance or participation of any agency.

Regulation of Recruitment and Placement – RA 8042/100221. Entities Prohibited to RecruitARTICLE 26. Travel agencies prohibited to recruit. – Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not.

POEA Rules IRR Book II Rule 1Section 2. Disqualification. — The following are not qualified to engage in the business of recruitment and placement of Filipino workers overseas:

a. Travel agencies and sales agencies of airline companies;

b. Officers or members of the Board of any corporation or members in a partnership engaged in the business of a travel agency;

c. Corporations and partnerships, when any of its officers, members of the board or partners, is also an officer, member of the board or partner of a corporation or partnership engaged in the business of a travel agency;

d. Persons, partnerships or corporations which have derogatory records, such as but not limited to the following:1. Those certified to have derogatory record

or information by the National Bureau of Investigation or by the Anti-Illegal Recruitment Branch of the POEA;

2. Those against whom probable cause or prima facie finding of guilt for illegal recruitment or other related cases exists;

3. Those convicted for illegal recruitment or other related cases and/or crimes involving moral turpitude; and

4. Those agencies whose licenses have been previously revoked or cancelled by the Administration for violation of RA 8042, PD 442 as amended and their implementing rules and regulations as well as these rules and regulations.All applicants for issuance/renewal of license shall be required to submit clearances from the National Bureau of Investigation and Anti-Illegal Recruitment Branch, POEA, including clearances for their respective officers and employees.

e. Any official or employee of the DOLE, POEA, OWWA, DFA and other government agencies directly involved in the implementation of R.A. 8042, otherwise known as Migrant Workers and Overseas Filipino Act of 1995 and/or any of his/her relatives within the fourth civil degree of consanguinity or affinity; and

f. Persons or partners, officers and Directors of corporations whose licenses have been previously cancelled or revoked for violation of recruitment laws. (Section 2, Rule I, Part II, Ibid.).

2. Citizenship RequirementsARTICLE 27. Citizenship requirement. – Only Filipino citizens or corporations, partnerships or entities at least seventy-five percent (75%) of the authorized and voting capital stock of which is owned and controlled by Filipino citizens shall be permitted to participate in the recruitment and placement of workers, locally or overseas.

3. CapitalizationPOEA Rules IRR Book II Rule 1Section 1 (b) A minimum capitalization of P2,000,000.00 in case of a single proprietorship or partnership and a minimum paid-up capital of P2,000,000.00 in case of a corporation; Provided that those with existing licenses shall, within four years from effectivity hereof, increase their capitalization or paid up capital, as the case may be, to P2,000,000.00 at the rate of P250,000.00 every year.

4. Non-transferability of LicenseARTICLE 29. Non-transferability of license or authority. – No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority be transferred, conveyed or assigned to any other person or entity. Any transfer of business address, appointment or designation of any agent or representative including the

establishment of additional offices anywhere shall be subject to the prior approval of the Department of Labor.Note: Change of business name must be with prior approval of DOLE otherwise it shall be VOID.

5. BondsARTICLE 31. Bonds. – All applicants for license or authority shall post such cash and surety bonds as determined by the Secretary of Labor to guarantee compliance with prescribed recruitment procedures, rules and regulations, and terms and conditions of employment as may be appropriate.

6. Fees Paid by WorkersPOEA RULES AND REGULATIONS – February 4, 2002SECTION 2. Fees and Costs Chargeable to Principals. — Unless otherwise provided, the principal shall be responsible for the payment of the following:

a. visa fee;b. airfare;c. POEA processing fee; andd. OWWA membership fee (Sec. 2, Rule V, Part II).

SECTION 3. Fees/Costs Chargeable to the Workers. — Except where the prevailing system in the country where the worker is to be deployed, either by law, policy or practice, do not allow the charging or collection of placement and recruitment fee, a land-based agency may charge and collect from its hired workers a placement fee in an amount equivalent to one month salary, exclusive of documentation costs.Documentation costs to be paid by the worker shall include, but not limited to, expenses for the following:

a. Passportb. NBI/Police/Barangay Clearancec. Authenticationd. Birth Certificatee. Medicaref. Trade Test, if necessaryg. Inoculation, when required by host country h. Medical Examination feesIn the event that the recruitment agency agrees to

perform documentation services, the worker shall pay only the actual cost of the document which shall be covered by official receipts.

The above-mentioned placement and documentation costs are the only authorized payments that may be collected from a hired worker. No other charges in whatever form, manner or purpose, shall be imposed on and be paid by the worker without prior approval of the POEA.

Such fees shall be collected from a hired worker only after he has obtained employment through the facilities of the recruitment agency. (Section 3, Rule V, Part II, Ibid.).

7. PROHIBITED PRACTICES; LiabilityARTICLE 34. Prohibited practices. – It shall be unlawful for any individual, entity, licensee, or holder of authority:

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

b. To furnish or publish any false notice or information or document in relation to recruitment or employment;

c. To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code.

d. To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment;

e. To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency;

f.To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines;

g. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives;

h. To fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor.

i. To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor;

j. To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; and

k. To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations.

RA 8042 as amended by RA 10022SEC. 6. . . . It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority:

a. To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance;

b. To furnish or publish any false notice or information or document in relation to recruitment or employment;

c. To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA;

d. To include or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment;

e. To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization;

f. To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines;

g. To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment;

h. To substitute or alter to the prejudice of the worker, employment contracts approved and

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

i. For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of travel agency;

k. To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations;

l. Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment;

m. Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and

n. To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.

In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts:

1. Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan;

2. Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons;

3. Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own;

4. Impose a compulsory and exclusive arrangement whereby an overseas Filipino

worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner;

5. Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except fpr recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings;

6. For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and

7. For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker's insurance coverage.

SEC. 15. REPATRIATION OF WORKERS; EMERGENCY REPATRIATION FUND. - The repatriation of the worker and the transport of his personal belongings shall be the primary responsibility of the agency which recruited or deployed the worker overseas. All costs attendant to repatriation shall be borne by or charged to the agency concerned and/or its principal. Likewise, the repatriation of remains and transport of the personal belongings of a deceased worker and all costs attendant thereto shall be borne by the principal and/or local agency. However, in cases where the termination of employment is due solely to the fault of the worker, the principal/employer or agency shall not in any manner be responsible for the repatriation of the former and/or his belongings.

The Overseas Workers Welfare Administration (OWWA), in coordination ith appropriate international agencies, shall undertake the repatriation of workers in cases of war, epidemic, disasters or calamities, natural or man-made, and other similar events without prejudice to reimbursement by the responsible principal or agency. However, in cases where the principal or recruitment agency cannot be identified, all costs attendant to repatriation shall be borne by the OWWA.

8. Suspension and/or cancellation of license or authority

ARTICLE 35. Suspension and/or cancellation of license or authority. - The Minister of Labor shall have the power to suspend or cancel any license or authority to recruit employees for overseas employment for violation of rules and regulations issued by the Ministry of Labor, the Overseas Employment Development Board, or for violation of the provisions of this and other applicable laws, General Orders and Letters of Instructions.

Note: The power to suspend or revoke the license or authority to recruit employees for overseas employment is CONCURRENTLY vested with the POEA and the DOLE Secretary.

Verified Undertaking by an Applicant for a License to Operate a Private Employment Agency or Manning Agency – POEA Rules Part II, Rule II Sec. f

1. Shall select only medically and technically qualified recruits;

2. Shall assume full and complete responsibility for all claims and liabilities which may arise in connection with the use of the license;

3. Shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract, including but not limited to payment of wages, death and disability compensation and repatriations;

4. Shall guarantee compliance with the existing labor and social legislations of the Philippines and of the country of employment of the recruited workers;

5. Shall assume full and complete responsibility for all acts of its officials, employees and representatives done in connection with recruitment and placement;

6. Shall negotiate for the best terms and conditions of employment;

7. Shall disclose the full terms and conditions of employment to the applicant workers;

8. Shall deploy at least 100 workers to its new markets within one (1) year from the issuance of its license;

9. Shall provide orientation on recruitment procedures, terms and conditions and other relevant information to its workers and provide facilities therefor; and

10. Shall repatriate the deployed workers and his personal belongings when the need arises.For the purpose of compliance with item (1), the agency may require the worker to undergo trade

testing and medical examination only after the worker has been pre-qualified for employment.

9. Illegal Recruitment – LOCALARTICLE 38. Illegal recruitment. – (a) 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, shall be deemed illegal and punishable under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints under this Article.

(b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof.Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

(c) The Secretary of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of job-seekers. The Secretary shall order the search of the office or premises and seizure of documents, paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishments and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so.

Note: (c) was DECLARED UNCONSTITUTIONAL in the case of Salazar vs. Achacoso

Local Forms of Illegal Recruitment: (Summary)1. Committed by a non-licensee but still recruits

and places workers.2. Committed by a licensee, but committed any of

the prohibited acts mentioned in Art. 34 of the Labor Code and RA 8042/10022

3. Committed by a non-licensee AND committed any of the prohibited acts.

ARTICLE 39. Penalties. –

a. The penalty of life imprisonment and a fine of P100,000.00 shall be imposed if illegal recruitment constitutes economic sabotage as defined herein;

b. Any licensee or holder of authority found violating or causing another to violate any provision of this Title or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than two years nor more than five years or a fine of not less than P10,000 nor more than P50,000, or both such imprisonment and fine, at the discretion of the court;

c. Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four years nor more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion of the court;

d. If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or officers of the corporation, partnership, association or entity responsible for violation; and if such officer is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings;

e. In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Development Board or the National Seamen Board, as the case may be, both of which are authorized to use the same exclusively to promote their objectives.

Secretary of Labor and Employment or his duly authorized representative, may cause the lawful arrest of illegal recruiters either:

1. Judicial warrant – issued by the RTC, MTC or MCTC judge

2. Without judicial warrant – Sec. 5, Rule 113 Criminal Procedure

10. Illegal Recruitment – OVERSEASRA 8042 as amended by RA 10022SEC. 6. Definition. - For purposes of this Act, 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 contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: 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. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority:

(See a-n in prohibited practices)Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business who are responsible for the commission of the offense and the responsible employees/agents thereof shall be liable.

In the filing of cases for illegal recruitment or any of the prohibited acts under this section, the Secretary of Labor and Employment, the POEA Administrator or their duly authorized representatives, or any aggrieved person may initiate the corresponding criminal action with the appropriate office. For this purpose, the affidavits and testimonies of operatives or personnel from the Department of Labor and Employment, POEA and other law enforcement agencies who witnessed the acts constituting the offense shall be sufficient to prosecute the accused.

In the prosecution of offenses punishable under this section, the public prosecutors of the Department of Justice shall collaborate with the anti-illegal recruitment branch of the POEA and, in certain cases, allow the POEA lawyers to take the lead in the prosecution. The POEA lawyers who act as prosecutors in such cases shall be entitled to receive additional allowances as may be determined by the POEA Administrator.

The filing of an offense punishable under this Act shall be without prejudice to the filing of cases punishable under other existing laws, rules or regulations.

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 P1,000,000.00 nor more than (P2,000,000.00).

b. The penalty of life imprisonment and a fine of not less than P2,000,000.00 nor more than 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 P500,000.00 nor more than 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.

SEC. 9. Venue. - A criminal action arising from illegal recruitment as defined herein shall be filed with the

1. Regional Trial Court of the province or city where the offense was committed or

2. where the offended party actually resides at the same time of the commission of the offense:

Provided, That the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts. Provided, however, That the aforestated provisions shall also apply to those criminal actions that have already been filed in court at the time of the effectivity of this Act.

Prescriptive Periods for Illegal RecruitmentLocal – 3 years, basis: Art. 290 of the Labor CodeOverseas – 5 years, basis RA 8042 Sec. 12Economic Sabotage – 20 years RA 8042 Sec. 12

3 Illegal Practices1. No license or authority2. With license or authority but made prohibited

practices under Art. 34 (local)3. With license or authority but made prohibited

practices under RA 8042 (overseas)

Elements of Large Scale Illegal Recruitment: (Summary)1. Accused undertakes any recruitment activity

defines in Art. 13 par. (b) or any of the prohibited practices under Art. 34 of the Labor Code.

2. He does not have a license or authority.3. Commits the same against 3 or more persons.

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

The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines who is competent, able and willing (CAW) at the time of application to perform the services for which the alien is desired.

For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise.

ARTICLE 41. Prohibition against transfer of employment. a. After the issuance of an employment permit, the

alien shall not transfer to another job or change his employer without prior approval of the Secretary of Labor.

b. Any non-resident alien who shall take up employment in violation of the provision of this Title and its implementing rules and regulations shall be punished in accordance with the provisions of Articles 289 and 290 of the Labor Code. In addition, the alien worker shall be subject to

deportation after service of his sentence.

SECTION 5. Requirements for employment permit application. — The application for an employment permit shall be accompanied by the following:

a. Curriculum vitae duly signed by the applicant indicating his educational background, his work experience and other data showing that he possesses high technical skills in his trade or profession;

b. Contract of employment between the employer and the principal which shall embody the following, among others: 1. That the non-resident alien worker shall

comply with all applicable laws and rules and regulations of the Philippines;

2. That the non-resident alien worker and the employer shall bind themselves to train at least two (2) Filipino understudies for a period

to be determined by the Secretary of Labor and Employment; and

3. That he shall not engage in any gainful employment other than that for which he was issued a permit.

c. A designation by the employer of at least two (2) understudies for every alien worker. Such understudies must be the most ranking regular employees in the section or department for which the expatriates are being hired to ensure the actual transfer of technology.

Note: The employer must show the non-availability of a person in the Philippines who is competent, able and willing (CAW) at the time of application to perform the services for which the alien is desired.

DOLE Department Order No. 75-06, Series of 2006.Gen. Rule: All foreign nationals who intend to engage in gainful employment in the Philippines shall apply for Alien Employment Permit (AEP)Foreign nationals exempted from securing AEP

1. All members of the diplomatic service and foreign government officials accredited by and with reciprocity arrangement with the Philippine government;

2. Officers and staff of international organizations of which the Philippine government is a member, and their legitimate spouses desiring to work in the Philippines;

3. Foreign nationals elected as members of the Governing Board who do not occupy any other position, but have only voting rights in the corporation;

4. All foreign nationals granted exemption by law; 5. Owners and representatives of foreign principals

whose companies are accredited by the Philippines for a limited period and solely for the purpose of interviewing Filipino applicants for employment abroad;

6. Foreign nationals who come to the Philippines to teach, present and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government; provided that the exemption is on reciprocal basis; and

7. Resident foreign nationals.

HUMAN RESOURCES DEVELOPMENT

A. RA 7796, Technical Education and Skills Development Authority 1. What is TESDA?SEC. 5. Technical Education and Skills Development Authority; Creation. - To implement the policy declared in this Act, there is hereby created a Technical Education and Skills Development Authority (TESDA), hereinafter referred to as the Authority, which shall replace and absorb the National Manpower and Youth Council (NMYC), the Bureau of Technical and Vocational Education (BTVE) and the personnel and functions pertaining to technical-vocational education in the regional offices of the Department of Education, Culture and Sports (DECS) and the apprenticeship program of the Bureau of Local Employment of the Department of Labor and Employment.

2. CompositionSEC. 7. Composition of the TESDA Board. - The TESDA Board shall be composed of the following:

The Secretary of Labor and Employment

Chairperson

Secretary of Education, Culture and Sports

Co-Chairperson

Secretary of Trade and Industry Co-Chairperson

Secretary of Agriculture MemberSecretary of Interior and Local Government

Member

Director-General of the TESDA Secretariat

Member

In addition, the President of the Philippines shall appoint the following members from the private sector: (TRIPARTITE BODY)

a. two (2) representatives, from the employer/industry organization, one of whom shall be a woman;

b. three (3) representatives, from the labor sector, one of whom shall be a woman; and

c. two (2) representatives of the national associations of private technical-vocational education and training institutions, one of whom shall be a women.

As soon as all the members of the private sector are appointed, they shall so organized themselves that the term of office of one-third (1/3) of their number shall expire every year. The member from the private sector appointed thereafter to fill vacancies caused by expiration of terms shall hold office for three (3) years.

The President of the Philippines may, however, revise the membership of the TESDA Board, whenever

the President deems it necessary for the effective performance of the Board's functions through an administrative order.

The TESDA Board shall meet at least twice a year, or as frequently as may be deemed necessary by its Chairperson. In the absence of the Chairperson, a Co-Chairperson shall preside. In case any member of the Board representing the Government cannot attend the meeting, he or she shall be regularly represented by an undersecretary or deputy-director general, as the case may be, to be designated by such member for the purpose.

The benefits, privileges and emoluments of the Board shall be consistent with existing laws and rules.

3. CommitteesSEC. 19. Technical Education and Skills Development Committees. - The Authority shall establish Technical Education and Skills Development Committees at the regional and local levels to coordinate and monitor the delivery of all skills development activities by the public and private sectors. These committees shall likewise serve as the Technical Education and Skills Development Committees of the Regional and local development councils. The compositions of the Technical Education and Skills development Committees shall be determined by the Director-General subject to the guidelines to be promulgated by the Authority.

4. Skills Development CentersSEC. 20. Skills Development Centers. - The Authority shall strengthen the network of national, regional and local skills training centers for the purpose of promoting skills development. This network shall include skills training centers in vocational and technical schools, technical institutes, polytechnic colleges, and all other duly accredited public and private dual system educational institutions. The technical education and skills development centers shall be administered and operated under such rules and regulations as may be established by the Authority in accordance with the National Technical Education and Skills Development Plan.

5. Incentive SchemesSEC. 27. Incentives Schemes. - The Authority shall develop and administer appropriate incentive schemes to encourage government and private industries and institutions to provide high-quality technical education and skills development opportunities. ARTICLE 52. Incentive Scheme. – An additional deduction from taxable income of one-half (1/2) of the

value of labor training expenses incurred for development programs shall be granted to the person or enterprise concerned provided that such development programs, other than apprenticeship, are approved by the Council and the deduction does not exceed ten percent (10%) of the direct labor wage.

There shall be a review of the said scheme two years after its implementation.

B. Training and Employment of Special Workers1. Apprenticesa. Definition of TermsSEC. 4. Definition of Terms. - As used in this Act: Skill shall mean the acquired and practiced ability to

carry out a task or job; Skills Development shall mean the process through

which learners and workers are systematically provided with learning opportunities to acquire or upgrade, or both, their ability, knowledge and behavior pattern required as qualifications for a job or range of jobs in a given occupational area;

Technical Education shall refer to the education process designed at post-secondary and lower tertiary levels, officially recognized as non-degree programs aimed at preparing technicians, para-professionals and other categories of middle-level workers by providing them with a broad range of general education, theoretical, scientific and technological studies, and related job skills training;

Trade shall mean any group of interrelated jobs or any occupation which is traditionally or officially recognized as craft or artisan in nature requiring specific qualifications that can be acquired through work experience and/or training;

Middle-Level Manpower refers to those:1. who have acquired practical skills and

knowledge through formal or non-formal education and training equivalent to at least a secondary education but preferably at post-secondary education with a corresponding degree of diploma; or

2. skilled workers who have become highly competent in their trade or craft as attested by industry;

Private Enterprises refers to an economic system under which property of all kinds can be privately owned and in which individuals, alone or in association with another, can embark on a business activity. This includes industrial, agricultural, or agro-industrial establishments engaged in the production, manufacturing, processing, repacking or assembly of goods including service-oriented enterprises;

Trainers shall mean persons who direct the practice of skills towards immediate improvement in some task;

Trainors/trainers shall mean persons who provide training to trainers aimed at developing the latter's capacities for imparting attitudes, knowledge, skills and behavior patters required for specific jobs, tasks, occupations or group of related occupations.

Trainees shall mean persons who are participants in a vocational, administrative or technical training program for the purpose of acquiring and developing job-related skills;

Apprenticeship training within employment with compulsory related theoretical instruction involving a contract between an apprentice and an employer on an approved apprenticeable occupation;

Apprentice is a person undergoing training for an approved apprenticeable occupation during an apprenticeship agreement;

Apprenticeship Agreement is a contract wherein a prospective employer binds himself to train the apprentice who in turn accepts the terms of training for a recognized apprenticeable occupation emphasizing the rights, duties and responsibilities of each party;

Apprenticeable Occupation is an occupation officially endorsed by a tripartite body and approved for apprenticeable by the Authority;

Learners refers to persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable. Learnership programs must be approved by the Authority;

b. QualificationsARTICLE 59. Qualifications of apprentice. – To qualify as an apprentice, a person shall:

a. Be at least fourteen (14) years of age;b. Possess vocational aptitude and capacity for

appropriate tests; andc. Possess the ability to comprehend and follow

oral and written instructions.Trade and industry associations may recommend to

the Secretary of Labor appropriate educational requirements for different occupations.

Note: Apprenticeship period should not exceed 6 months. (Art. 61)The wage of the apprentice shall not be below75% of the minimum wage required by law. (Art. 61)

c. Apprenticeable Occupation

Sec. 4 (m) Apprenticeable Occupation is an occupation officially endorsed by a tripartite body and approved for apprenticeable by the Authority.Note: tripartite (3) body is composed of the private sector from: (Sec. 7 par. (2) TESDA Law)

1. Employer/industry organization2. Labor sector3. National associations of private technical

vocational education and training institutions.

d. Apprenticeship AgreementTESDA Sec. 4 Apprenticeship Agreement is a contract wherein a prospective employer binds himself to train the apprentice who in turn accepts the terms of training for a recognized apprenticeable occupation emphasizing the rights, duties and responsibilities of each party.

ARTICLE 60. Employment of apprentices. - Only employers in the highly technical industries may employ apprentices and only in apprenticeable occupations approved by the Secretary of Labor and Employment. (As amended by Section 1, Executive Order No. 111, December 24, 1986).

ARTICLE 61. Contents of apprenticeship agreements. – Apprenticeship agreements, including the wage rates of apprentices, shall conform to the rules issued by the Secretary of Labor and Employment.

The period of apprenticeship shall not exceed six months.

Apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75 percent of the applicable minimum wage,

may be entered into only in accordance with apprenticeship programs duly approved by the Secretary of Labor and Employment.

The Department shall develop standard model programs of apprenticeship. (As amended by Sec. 1, Exec. Order No. 111, Dec. 24, 1986).

ARTICLE 62. Signing of apprenticeship agreement. -Every apprenticeship agreement shall be signed by

1. the employer or his agent, or 2. by an authorized representative of any of the

recognized organizations, associations or groups and by the apprentice.

An apprenticeship agreement with a minor shall be signed in his behalf by

1. his parent or guardian, if the latter is not available,

2. by an authorized representative of the Department of Labor, and the same shall be binding during its lifetime.

Every apprenticeship agreement entered into under this Title shall be ratified by the appropriate apprenticeship committees, if any, and a copy thereof shall be furnished both the employer and the apprentice.

ARTICLE 63. Venue of apprenticeship programs. – Any firm, employer, group or association, industry organization or civic group wishing to organize an apprenticeship program may choose from any of the following apprenticeship schemes as the training venue for apprentice:

a. Apprenticeship conducted entirely by and within the sponsoring firm, establishment or entity;

b. Apprenticeship entirely within a Department of Labor and Employment training center or other public training institution; or

c. Initial training in trade fundamentals in a training center or other institution with subsequent actualwork participation within the sponsoring firm or entity during the final stage of training.

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

a. In the premises of the sponsoring employer in the case of individual apprenticeship programs;

b. In the premises of one or several designated firms in the case of programs sponsored by a group or association of employers or by a civic organization; or

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

ARTICLE 65. Investigation of violation of apprenticeship agreement. – Upon complaint of any interested person or upon its own initiative, the appropriate agency of the Department of Labor and Employment or its authorized representative shall investigate any violation of an apprenticeship agreement pursuant to such rules and regulations as may be prescribed by the Secretary of Labor and Employment.

ARTICLE 66. Appeal to the Secretary of Labor and Employment. - The decision of the authorized agency of the Department of Labor and Employment may be appealed by any aggrieved person to the Secretary of

Labor and Employment within five (5) days from receipt of the decision. The decision of the Secretary of Labor and Employment shall be final and executory.

ARTICLE 67. Exhaustion of administrative remedies. – No person shall institute any action for the enforcementof any apprenticeship agreement or damages for breach of any such agreement, unless he has exhausted all available administrative remedies.

ARTICLE 68. Aptitude testing of applicants. – Consonant with the minimum qualifications of apprentice-applicants required under this Chapter, employers or entities with duly recognized apprenticeship programs shall have primary responsibility for providing appropriate aptitude tests in the selection of apprentices. If they do not have adequate facilities for the purpose, the Department of Labor and Employment shall perform the service free of charge.

ARTICLE 69. Responsibility for theoretical instruction. – Supplementary theoretical instruction to apprentices in cases where the program is undertaken in the plant may be done by the employer. If the latter is not prepared to assume the responsibility, the same may be delegated to an appropriate government agency.

ARTICLE 70. Voluntary organization of apprenticeship programs; exemptions. –

a. The organization of apprenticeship program shall be primarily a voluntary undertaking by employers;

(EXCEPTIONS)b. When 1) national security or particular

requirements of 2) economic development so demand, the President of the Philippines may require compulsory training of apprentices in certain trades, occupations, jobs or employment levels where shortage of trained manpower is deemed critical as determined by the Secretary of Labor and Employment. Appropriate rules in this connection shall be promulgated by the Secretary of Labor and Employment as the need arises; and

c. Where services of foreign technicians are utilized by private companies in apprenticeable trades, said companies are required to set up appropriate apprenticeship programs.

ARTICLE 71. Deductibility of training costs. – An additional deduction from taxable income of one-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices shall be granted to the person or enterprise

organizing an apprenticeship program: Provided, That such program is duly recognized by the Department of Labor and Employment: Provided, further, That such deduction shall not exceed ten (10%) percent of direct labor wage: and Provided, finally, That the person or enterprise who wishes to avail himself or itself of this incentive should pay his apprentices the minimum wage.Note:

It is deduction from the TAXABLE INCOME It is ½ of the VALUE of the training EXPENSES It is (the program) RECOGNIZED by the DOLE The deduction shall not exceed 10% of the

direct labor wage The employer shall pay his apprentice the

MINIMUM WAGE and NOT discounted 75% maximum allowed by law.

e. Apprenticeship without CompensationARTICLE 72. Apprentices without compensation. – The Secretary of Labor and Employment may authorize the hiring of apprentices without compensation whose training on the job is required by the school or training program curriculum or as requisite for graduation or board examination.

IRR Book III Rule XSECTION 14. Working scholars. — There 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 the former agree to work for the latter in exchange for the privilege to study free of charge, provided the students are given real opportunities, including such facilities as may be reasonable and necessary to finish their chosen courses under such agreement.

2. LearnersARTICLE 73. Learners defined. – Learners are persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed three (3) months.

TESDA Sec. 4 Learners refers to persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable. Learnership programs must be approved by the Authority.

ARTICLE 74. When learners may be hired. – Learners may be employed when no experienced workers are available, the employment of learners is necessary to

prevent curtailment of employment opportunities, and the employment does not create unfair competition in terms of labor costs or impair or lower working standards.

ARTICLE 75. Learnership agreement. – Any employer desiring to employ learners shall enter into a learnership agreement with them, which agreement shall include:

a. The names and addresses of the learners;b. The duration of the learnership period, which

shall not exceed three (3) months;c. The wages or salary rates of the learners which

shall begin at not less than seventy-five percent (75%) of the applicable minimum wage; and

d. A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners.

The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representative.

ARTICLE 76. Learners in piecework. – Learners employed in piece or incentive-rate jobs during the training period shall be paid in full for the work done.

Learnership vs. Apprenticeship:

Learnership Apprenticeship training in semi-skilled

job; industrial occupa-tions that require training for less than 3 months

job is non-apprenticeable because its practical skills can be learned in 3 (not 6) months

commitment to hire a learner after the period

no need for prior approval from DOLE in terms of hiring

training in highly-skilled job; job found in highly-technical industry; training period exceeds 3 months

minimum period is 6 months

no commitment to hire an apprentice even after completion of period

prior DOLE approval required for hiring apprentices

BOTH: Training periods for jobs requiring skills that can be acquired through actual work experience; both learner and apprentice may be paid wages twenty-five

(25%) percent lower than the applicable legal minimum wage.

Learner is not an apprentice, but an apprentice is considered a learner.

3. Handicapped WorkersARTICLE 78. Definition. – Handicapped workers are those whose earning capacity is impaired by age or physical or mental deficiency or injury.

ARTICLE 79. When employable. – Handicapped workers may be employed when their employment is necessary to prevent curtailment of employment opportunities and when it does not create unfair competition in labor costs or impair or lower working standards.ARTICLE 80. Employment agreement. – Any employer who employs handicapped workers shall enter into an employment agreement with them, which agreement shall include:a. The names and addresses of the handicapped workers to be employed;b. The rate to be paid the handicapped workers which shall not be less than seventy five (75%) percent of the applicable legal minimum wage;c. The duration of employment period; andd. The work to be performed by handicapped workers.The employment agreement shall be subject to inspection by the Secretary of Labor or his duly authorized representative.ARTICLE 81. Eligibility for apprenticeship. – Subject to the appropriate provisions of this Code, handicapped workers may be hired as apprentices or learners if their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired.

RA 7277 Magna Carta for Disabled PersonsSec. 4. Definition of Terms. — For purposes of this Act, these terms are defined as follows:(a) Disabled persons are those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being; b) Impairment is any loss, diminution or aberration of psychological, physiological, or anatomical structure or function; (c) Disability shall mean 1) a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical function of an individual or activities of such individual; 2) a record of

such an impairment; or 3) being regarded as having such an impairment;d) Handicap refers to a disadvantage for a given individual, resulting from an impairment or a disability, that limits or prevents the function or activity, that is considered normal given the age and sex of the individual; (h) Reasonable Accommodation include 1) improvement of existing facilities used by employees in order to render these readily accessible to and usable by disabled persons; and 2) modification of work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustments or modifications of examinations, training materials or company policies, rules and regulations, the provision of auxiliary aids and services, and other similar accommodations for disabled persons; (i) Sheltered Employment refers to the provision of productive work for disabled persons through workshops providing special facilities, income-producing projects or homework schemes with a view to giving them the opportunity to earn a living thus enabling them to acquire a working capacity required in open industry; (l) Qualified Individual with a Disability shall mean an individual with a disability who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires. However, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job;

Sec. 5. Equal Opportunity for Employment. — No disable person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person.

Five percent (5%) of all casual emergency and contractual positions in the Departments of Social Welfare and Development; Health; Education, Culture and Sports; and other government agencies, offices or corporations engaged in social development shall be reserved for disabled persons.

Sec. 6. Sheltered Employment — If suitable employment for disabled persons cannot be found through open employment as provided in the immediately preceding Section, the State shall endeavor to provide it by means of sheltered employment. In the placement of disabled persons in sheltered employment, it shall accord due regard to the individual qualities, vocational goals and inclinations to ensure a good working atmosphere and efficient production.

Sec. 7. Apprenticeship. — Subject to the provisions of the Labor Code as amended, disabled persons shall be eligible as apprentices or learners: Provided, That their handicap is not as much as to effectively impede the performance of job operations in the particular occupation for which they are hired; Provided, further, That after the lapse of the period of apprenticeship, if found satisfactory in the job performance, they shall be eligible for employment.

Sec. 8. Incentives for Employers. — a. To encourage the active participation of the

private sector in promoting the welfare of disabled persons and to ensure gainful employment for qualified disabled persons, adequate incentives shall be provided to private entities which employ disabled persons.

b. Private 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 their gross income, equivalent to twenty-five percent (25%) of the total amount paid as salaries and wages to disabled persons: Provided, however, That such entities present proof as certified by the Department of Labor and Employment that disabled persons are under their employ: Provided, further, That the disabled employee is accredited with the Department of Labor and Employment and the Department of Health as to his disability, skills and qualifications.

c. Private entities that improve or modify their physical facilities in order to provide reasonable accommodation for disabled persons shall also be entitled to an additional deduction from their net taxable income, equivalent to fifty percent (50%) of the direct costs of the improvements or modifications. This Section, however, does not apply to improvements or modifications of facilities required under BP 344.

Sec. 32. Discrimination on Employment. — No entity, whether public or private, shall discriminate against a

qualified disabled person by reason of disability in regard to job application procedures, the hiring, promotion, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. The following constitute acts of discrimination:

a. Limiting, segregating or classifying a disabled job applicant in such a manner that adversely affects his work opportunities;

b. Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out a disabled person unless such standards, tests or other selection criteria are shown to be job-related for the position in question and are consistent with business necessity;

c. Utilizing standards, criteria, or methods of administration that:

1. have the effect of discrimination on the basis of disability; or

2. perpetuate the discrimination of others who are subject to common administrative control.

d. Providing less compensation, such as salary, wage or other forms of remuneration and fringe benefits, to a qualified disabled employee, by reason of his disability, than the amount to which a non-disabled person performing the same work is entitled;

e. Favoring a non-disabled employee over a qualified disabled employee with respect to promotion, training opportunities, study and scholarship grants, solely on account of the latter's disability;

f. Re-assigning or transferring a disabled employee to a job or position he cannot perform by reason of his disability;

g. Dismissing or terminating the services of a disabled employee by reason of his disability unless the employer can prove that he impairs the satisfactory performance of the work involved to the prejudice of the business entity: Provided, however, That the employer first sought to provide reasonable accommodations for disabled persons;

h. Failing to select or administer in the most effective manner employment tests which accurately reflect the skills, aptitude or other factor of the disabled applicant or employee that such tests purports to measure, rather than the impaired sensory, manual or speaking skills of such applicant or employee, if any; and

i. Excluding disabled persons from membership in labor unions or similar organizations.

Sec. 33. Employment Entrance Examination. — Upon an offer of employment, a disabled applicant may be subjected to medical examination, on the following occasions:

a. all entering employees are subjected to such an examination regardless of disability;

b. information obtained during the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record; Provided, however, That:

1. supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employees and necessary accommodations;

2. first aid and safety personnel may be informed, when appropriate, if the disability may require emergency treatment;

3. government officials investigating compliance with this Act shall be provided relevant information on request; and

4. the results of such examination are used only in accordance with this Act.

4. Employment of StudentsRA 9547 amending RA 7323 – Special Program for Employment of Students (SPES) Section 1. Any provision of law to the contrary notwithstanding, any person or entity employing at least 10 persons may employ poor but deserving students 15 years of age but not more 25 years old, paying them a salary or wage not lower than the minimum wage for private employers and the applicable hiring rate for the national and local government agencies: Provided, that student enrolled in the secondary level shall only be employed during summer and/or christmas vacations, while those enrolled in the tertiary, vocational or technical education may be employed at any time of the year: Provided, further, That their period of employment shall be from 20 to 52 working days only, except that during Christmas vacation, employment shall be from 10 to 15 days which may be counted as part of the students' probationary period should they apply in the same company or agency after graduation: Provided, finally, That students employed in activities related to their course may earn equivalent academic credits as may be determined by the appropriate government agencies.

For purposes of this Act, poor but deserving students refer to those whose parents' combined income, together with their own, if any, does not exceed the annual regional poverty threshold level for a

family of 6 for the preceding year as may be determined by the NEDA. Employment facilitation services for applicants to the program shall be done by the Public Employment Service Office (PESO).

Participating employers in coordination with the PESO, must inform their SPES employees of their rights, benefits, and privileges under existing laws, company policies, and employment contracts.

Section 2. 60% of the said salary or wage shall be paid by the employers in cash and 40% by the government in the form of a voucher which shall be applicable in the payment for the students' tuition fees and books in any educational institution for secondary, tertiary, vocational or technical education: Provided, That local government units (LGUs) may assume responsibility for paying in full his salary or wages. The amount of the education vouchers shall be paid by the government to the educational institutions concerned within 30 days from its presentation to the officer or agency designated by the Secretary of Finance.

The vouchers shall not be transferable except when the payees thereof dies or for a justifiable cause stops in his duties, in which case it can be transferred to his brothers or sisters. If there be none, the amount thereof shall be paid his heirs or to the payee himself, as the case may be."

Section 3. The DOLE Secretary, the DECS Secretary, the CHED Chairman, the DBM, the DSWD Secretary and the DF Secretary shall issue the corresponding rules and regulations to carry out the purposes of this act.

The DOLE Secretary shall be the Program Chairman.

Section 4. Any persons or entity who refuses to honor education vouchers or makes any fraudulent or fictitious claim under this Act, regardless of whether payment has been made, shall upon conviction be punished with imprisonment of not less than 6 months and not more than 1 year and a fine of not less than P10,000.00, without prejudice to their prosecution and punishment for any other offense punishable under the Revised Penal Code or any other penal statute.

In case of partnerships or corporations, the managing partner, general manager, or chief executive officer, as the case may be, shall be criminally liable.

CONDITIONS OF EMPLOYMENTA. Working Conditions and Rest PeriodsARTICLE 82. Coverage. – The provisions of this Title shall apply to employees in all establishments and undertakings whether for profit or not, but not to: 1. government employees, 2. managerial employees, 3. field personnel, 4. members of the family of the employer who are

dependent on him for support, 5. domestic helpers, persons in the personal service of

another, and 6. workers who are paid by results as determined by

the Secretary of Labor in appropriate regulations.

As used herein, “managerial employees” refer to those whose:1. primary duty consists of the management of the

establishment in which they are employed or of a department or subdivision thereof, and

2. to other officers or members of the managerial staff.

“Field personnel” shall refer to 1. non-agricultural employees who 2. regularly perform their duties away from the

principal place of business or branch office of the employer and

3. whose actual hours of work in the field cannot be determined with reasonable certainty.

(MEMORIZE Art. 82)

Employees in all establishments and undertakings whether for profit or not BUT NOT TO:1. government employees,2. managerial employees – those whose primary

duty consists of the management of the establishment in which they are employed or of a dept or subdivision thereof, and to other officers or members of the managerial staff

3. field personnel – refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty

4. members of the family who are dependent on him for support

5. domestic helpers6. persons in the personal service of another7. workers who are paid by results

1. Employment relationship as condition precedentPhilippine Fuji Xerox vs. NLRC – Depending on the applicability of the tests of employment, an ER-EE relationship may exist regardless of the nature of the activities involved. The kind of work is not the definitive test whether the worker is an employee or not.

Definition of Employer and EmployeeEmployer is one who employs the services of others; one for whom the employees work and who pays their wages and salaries.Employee is one who is engaged in the service of another; who performs services for another; who works for salary or wages. His work is subject to the control of the employer not only as to the result but the manner and means of doing it.

Under Article 97 of the Labor Code:Employer – includes any person acting directly or indirectly in the interest of an employer in relation to an employee …Employee – includes any individual employed by an employer.

Under the Social Security Law, R.A. 1161Employer – Any person, natural or juridical, domestic or foreign, who carries on in the Philippines any trade, business, industry, undertaking, or activity of any kind and uses the services of another person who is under his orders as regards the employment… Employee – Any person who performs services for an employer in which either or both mental and physical efforts are used and who receives compensation for such services, where there is an employer-employee relationship.

Elements of employment relationship (4-fold test) (SePaPoCo) (MEMORIZE)

1. Selection and engagement of the employee2. Payment of wages3. Power of dismissal4. Employer’s power to control the employee with

respect to the means and methods by which the work is to be accomplished aka Control test (Brotherhood Labor Unity vs. Zamora)

Sevilla vs. CA – Court considered in addition to the standard of right-of-control, the existing economic conditions prevailing between the parties, like the inclusion of the employee in the payrolls, in determining the existence of ER-EE relationship.– The fact that one had been designated “branch manager” does not make such person an employee.

Employment is determined by the right-of-control test and certain economic parameters.

Control test calls merely for the existence of the right to control the manner of doing the work, not the actual exercise of the right.

Two-Tiered Approach; the Economic Dependence TestFrancisco vs. NLRC – The two-tiered test involve:

1. The putative employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished; and

2. The underlying economic realities of the activity or relationship.

– The determination of the relationship between employer and employee depends upon the circumstances of the whole economic activity, such as:

1. the extent to which the services performed are an integral part of the employer’s business;

2. the extent of the worker’s investment in equipment and facilities;

3. the nature and degree of control exercised by the employer;

4. the worker’s opportunity for profit and loss; 5. the amount of initiative, skill, judgment or

foresight required for the success of the claimed independent enterprise;

6. the permanency and duration of the relationship between the worker and the employer; and

7. the degree of dependency of the worker upon the employer for his continued employment in that line of business.

– The proper standard of economic dependence is whether the worker is dependent on the alleged employer for his continued employment in that line of business.

Evidence to Establish ER-EEDomasig vs. NLRC – In administrative and quasi-judicial proceedings, substantial evidence is sufficient as basis for judgment of existence of ER-EE relationship. No particular form of evidence is required. Any competent and relevant evidence to prove it may be admitted. Company issued identification card; cash vouchers

covering employee’s salaries (Domasig vs. NLRC) registration with the SSS(Flores vs. Nuestra) Taxes withheld on salaries ; employment contracts,

appointment letters, personnel list; payrolls; Contribution to Employees Provident Fund (Equitable Banking Corp. vs. NLRC and Sadac)

Memorandum Organization charts

Personnel lists Testimony of co-employees

Mode of Compensation, Not a Test of Employment Status The presence or absence of ER-EE relationship is not

determined by the basis of employee’s compensation.

Commissions or wage or salary maybe dependent on the hours of work spent, quality or quantity of work done as well as skill.

Piece rate, boundary and pakyaw are merely methods of pay computation and do not prove whether the payee is an employee or not.

Existence of Employment Relationship Determined by Law, Not by Contract The existence of ER-EE relationship is determined

by law and it cannot be negated simply by repudiating it in the management or employment contract.

The SC decided that ER-EE relationship exists in the following cases: 1. Salaried Insurance Agent as distinquished from

registered agents on commission basis (Great pacific Life vs. Judico)

2. School Teachers (Feati University vs. Bautista) 3. Jeepney Drivers, Taxi Driver, Barbers (Citizens

League vs. Abbas; Jardin vs. NLRC) 4. Piece Rate workers (Makati Haberdashery vs. NLRC5. Street Hired cargadors (Caurdanetaan Piece

Workers Union vs. Laguesma) 6. Fisherman serving on various capacities for 8 -15

years paid on commission basis (Ruga vs. NLRC)7. Workers on movie projects (Maraguinot vs. NLRC)8. Employees of labor union (Bautista vs. Inciong)9. Employees of unregistered association (Orlando

Farm Growers vs. NLRC)

No employment Relationship – Job contracting or Independent Contractorship An employee is not a contractor; a contractor is not

an employee and does not enjoy an employee’s rights.

A contractor is self-employed or an employer to others.

While ER-EE relationship exists between a job contractor and the workers that he hires, no such relationship exists between those workers and the job contractee, the contractor’s client.

Labor-only contracting is prohibited. ER-EE relationship exists between the workers and the enterprise to which they are supplied.

General Right of Employer Over Conditions of EmploymentSan Miguel vs. Ople – 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, dismissal and recall of workers so long as the they are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements.

Independent Contractor; Radio and Broadcast TalentSonza vs. ABS-CBN – The control test is the most important test our courts apply in distinguishing an employee from an independent contractor. The greater the supervision and control the hirer exercises, the more likely the worker is deemed an employee. A radio broadcast specialist who works under minimal supervision is an independent contractor.

2. Excluded Employees1. government employees governed by CSC rules

EXCEPT government employees of government agencies and government corporations incorporated under the Corporation Code

2. managerial employees or staff – including supervisors

3. field personnel4. the employer’s family members who depend on

him for support5. domestic helpers and persons in the personal

service of another6. workers paid by results as determined under

DOLE regulations

Managerial Employees or StaffIRR Book III Rule ISECTION 2. Exemption. — b. Managerial employees, if they meet all of 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.

c. Officers or members of a managerial staff if they perform the following duties and responsibilities:

1. The primary duty consists of the performance of work directly related to management policies of their employer;

2. Customarily and regularly exercise discretion and independent judgment; and

3. (i) Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof; or (ii) execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (iii) execute, under general supervision, special assignments and tasks; and

4. Who do not devote more than 20 percent of their hours worked in a work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1), (2) and (3) above.

Managerial employees and other officers or members of the managerial staff are excluded from the coverage of Articles 82 to 96.

Supervisors, like managers are excluded from their coverage.

A shift engineer/foreman/boiler head may be considered a member of the managerial staff.

Outside or Field Sales PersonnelIRR Book III Rule ISECTION 2. Exemption. — f. Non-agricultural field personnel if they regularly perform their duties away from the principal or branch office or place of business of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.

Excluded also from Articles 82 to 96 coverage Gen. Rule: field personnel” are those whose

performance of their job/service is not supervised by the employer or his representative, the workplace being away from the principal office and whose hours and days of work cannot be determined with reasonable certainty; hence, they are paid specific amount for rendering specific service or performing specific work.

If required to be at specific places at specific times, employees including drivers cannot be said to be

field personnel despite the fact they are performing work away from the principal office of the employee.

The phrase “whose actual hours of work in field cannot be determined with reasonable certainty” in Art. 82 must be read in conjunction with Rule IV, Book III of the IRR which provides:Section 1. Coverage – This rule shall apply to all employees except: x x x(e) Field personnel and other employees whose time and performance is unsupervised by the employer

In deciding WON the employee’s actual working hours in the field can be determined with reasonable certainty, query must be made as to WON such employee’s time and performance is constantly supervised by the employer.

If usage of work hours are supervised the employee is not a field personnel.

Domestic Helpers and Persons Rendering Personal ServiceIRR Book III Rule ISECTION 2. Exemption. — d. Domestic servants and persons in the personal service of another if they perform such services in the employer's home which are usually necessary or desirable for the maintenance and enjoyment thereof, or minister to the personal comfort, convenience, or safety of the employer as well as the members of his employer's household.

Cadiz vs. Philippine Sinter Corp. – House personnel hired by a ranking company official but paid for by the company itself, to maintain a staff house provided for the official, are not the latter’s domestic helper but regular employees of the company.

Villa vs. Zaragosa – A family cook who is later assigned as a watcher and cleaner of the employer’s business establishment becomes an industrial worker.

Rosales vs. Tan – Waiters of a hotel does not fall under the term “domestic servants and persons in the personal service of another.”

Workers Paid by ResultIRR Book III Rule ISECTION 2. Exemption. — e. Workers who are paid by results, including those who are paid on piece-work, "takay," "pakiao" or task basis, and other non-time work if their output rates are in accordance with the standards prescribed under Section 8, Rule VII, Book Three of these regulations, or where such rates have

been fixed by the Secretary of Labor and Employment in accordance with the aforesaid Section.

3. Hours Workeda. Coverage – Art. 82

b. Normal Hours of WorkARTICLE 83. Normal hours of work. – The normal hours of work of any employee shall not exceed eight (8) hours a day.

Health personnel in cities and municipalities with a population of at least one million (1,000,000) or in hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, EXCEPT where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. For purposes of this Article, “health personnel” shall include resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. 8-Hour Labor Law was enacted not only to

safeguard the health and welfare of the laborer or employee, but in a way to minimize unemployment by forcing employers, in cases of more than 8-hour operation is necessary, to utilize different shifts of laborers or employees working only for 8 hours each.

Part-time work or a day’s work of less than 8 hours is not prohibited.

Health personnel covered by the 40-hour work week shall include, but not limited to, resident physicians, nurses, nutritionists, dieticians, pharmacists, social workers, laboratory technicians paramedical technicians, psychologists, midwives, and attendants. Medical secretaries are also considered clinic personnel.

c. Hours WorkedARTICLE 84. Hours worked. – Hours worked shall include

a. all time during which an employee is required to be on duty or to be at a prescribed workplace; and

b. all time during which an employee is suffered or permitted to work.

Rest periods of short duration during working hours shall be counted as hours worked.

IRR Book III Rule I (MEMORIZE AND MASTER)SECTION 3. Hours worked. — The following shall be considered as compensable hours worked:

a. All time during which an employee is required to be on duty or to be at the employer's premises or to be at a prescribed work place; and

b. All time during which an employee is suffered or permitted to work.

SECTION 4. Principles in determining hours worked. — The following general principles shall govern in determining whether the time spent by an employee is considered hours worked for purposes of this Rule:

a. All hours are hours worked which the employee is required to give 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 work place in order that his rest period shall not be counted, it being enough that he stops working, may rest completely and may leave his work place, to go elsewhere, whether within or outside the premises of his work place.

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 for 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 the imminence of the resumption of work requires the employee's presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employee's own interest.

Preliminary Activities Preliminary and postliminary activities are deemed

performed during working hours, where such activities are controlled or required by the employer and are pursued necessarily for the employer’s benefit.

Waiting TimeSECTION 5. Waiting time. —1. Waiting time spent by an employee shall be

considered as working time if o waiting is an integral part of his work or

o the employee is required or engaged by the employer to wait.

2. An employee who 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 shall be considered as working while on call. An employee who is not required to leave word at his home or with company officials where he may be reached is not working while on call.

In determining whether waiting time constitutes working time, the controlling factor is whether waiting time spent in idleness is so spent predominantly for the employer’s benefit or for the employees.

Waiting time spent by an employee shall be considered as working time if waiting is considered an integral part of his work or if the employee is required or engaged by an employer to wait.

Working While Eating Not compensable if employee is completely freed

from duties even though he remains in the workplace.

Employee is not relieved if he is required to perform his duties whether active or inactive, while eating.

Working While Sleeping may be considered working if it is subject to

interruption or takes place under conditions substantially less desirable than would likely to exist at employee’s home

“On Call” compensable An employee who is required to remain on call on

the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call”. (Pan American vs. Pan American)

“within reach through cellphone or other contact device” is not “on call” and thus not compensable

c1. Travel TimeRule: Time spent traveling to or from the place of work “may or may not” be considered working time. It depends upon the kind of travel involved.

Factors to Consider WON Travel is to be Working Time:1. Whether the employee is bound to travel in

conveyance furnished by the employer or is free to choose his conveyance

2. WON during the travel, he is subject to the employer’s supervision and control

3. WON the travel takes place under vexing and dangerous conditions

Kinds of Travel1. Travel from home to work. – going to or from the

workplace Gen. Rule: not worktime, Exception: When an employee receives an emergency call outside of his regular working hours and is required to travel to his regular place of business or some other work site, all of the time spent in such travel is working time.

2. Travel that is all in the day’s work. – Time spent by

an employee in travel as part of his principal activity, (e.g. travel form jobsite to jobsite during the workday)Gen. Rule: must be counted as hours worked (even if beyond the 8-5 working hours)Exception: If the employee goes home instead of returning to his employer’s premises, that would be travel to work and is not work time

3. Travel away from home. – Travel that keeps an

employee away from home overnight Gen. Rule: Work time when it cuts across or coincides with the employee’s regular working hours.NOTE: AWAY FROM HOME and not BACK

c2. Lectures, meetings, training programsSECTION 6. Lectures, meetings, training programs. — Attendance at lectures, meetings, training programs, and other similar activities shall not be counted as working time if all of the following conditions are met:

a. Attendance is outside of the employee's regular working hours;

b. Attendance is in fact voluntary; and c. The employee does not perform any

productive work during such attendance.

PRISCO vs. CIR – Services rendered outside of the regular working hours partake the nature of overtime work.

c3. Semestral break Semestral breaks may be considered as “hours

worked” under the IRR of the Labor Code and that regular professors and full-time teachers are entitled to salary and emergency cost-of-living allowance during semestral break, their “absence” from work not being of their own will.

c4. Work Hours of SeamenLuzon Stevedoring vs. Luzon Marine Dept. – A laborer need not leave the premises of the boat in order that his period of rest shall not be counted, it being enough that he “ceases to work,” may rest completely and leave or may leave at his will the spot where he actually stays while working, to go somewhere else, whether within or outside the premises of said factory, shop or boat. If these requisites are complied with, the period of such rest shall not be counted.

National Shipyards and Steel vs. CIR – The correct criterion in determining WON sailors are entitled to overtime pay is not, whether they are on board and cannot leave ship beyond the regular 8 working hours a day, but whether they actually rendered service in excess of said number of hours.

Hours Worked: Evidence and DoubtWhen an employer alleges that his employee works less than normal hours of employment as provided for in the law, he bears the burden of proving his allegation with clear and satisfactory evidence.

d. Meal PeriodsARTICLE 85. Meal periods. – Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals.

Note: Meal periods may shorter than one hour but not lesser than 20 minutes (1-19 minutes, it must be compensable)

Gen. Rule: Meal time is not compensableException: where it is predominantly spent for employer’s benefit or where it is less than 60 minutes (but in no case shall it be shorter than 20 minutes)

Continuous Shifts – the meal time breaks should be counted as working time for purposes of overtime compensation.

Meal Time of Less Than 60 Minuteso The meal period should be not less than 60

minutes, it is time-off or noncompensable time.o IRR Sec. 7, Rule I, Book III allow the meal time to be

less than 60 minutes, under specified cases and in no case shorter than 20 minutes.

o To shorten meal time to less than 20 minutes is not allowed otherwise it becomes only a rest period and is considered working time.

IRR Book III Rule ISECTION 7. Meal and Rest Periods. — Every employer shall give his employees, regardless of sex, not less than one (1) hour time-off for regular meals, except in the following cases when a meal period of not less than twenty (20) minutes may be given by the employer provided that such shorter meal period is credited as compensable hours worked of the employee:

a. Where the work is non-manual work in nature or does not involve strenuous physical exertion;

b. Where the establishment regularly operates not less than sixteen (16) hours a day;

c. 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

d. Where the work is necessary to prevent serious loss of perishable goods.

Rest periods or coffee breaks running from five (5) to twenty (20) minutes shall be considered as compensable working time.

Shortened meal break upon employee’s request Employees themselves may request that their meal

period be shortened so that they can leave work earlier than the previously established schedule. In such a situation, the shortened meal period is not compensable.

The DOLE in allowing such arrangement, imposes, however, certain conditions, namely: 1. The employees voluntarily agree in writing to a

shortened meal period of thirty 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 to work beyond 4:30 p.m.; and

6. The effectivity of the proposed working time arrangement shall be of temporary duration as determined by the Secretary of Labor and Employment.

Changing Lunch Break From Paid to UnpaidSime Darby Pilipinas vs. NLRC – Management is free to regulate, according to its own discretion and judgment, all aspects of employment. It retains the prerogative, whenever exigencies of the service so require, to change the working hours of its employees. So long as such prerogative is exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, this Court will uphold such exercise. The new work schedule fully complies with the daily work period of eight (8) hours without violating the labor Code. Besides, the new schedule applies to all employees in the factory similarly situated, whether they are union members or not.

e. Night Shift DifferentialARTICLE 86. Night shift differential. – Every employee shall be paid a night shift differential of not less than ten percent (10%) of his regular wage for each hour of work performed between ten o’clock in the evening and six o’clock in the morning.

Note: Night shift differential is 10%. Time: 10 pm -6 am

Rationale of Night Shift DifferentialShell Company vs. National Labor Union – The additional compensation of night shift differential recognizes the universal fact that regular, normal and ordinary work is that performed during the day, and that work done at night is very exceptional and justified only on grounds of inevitable necessity. When there is no other alternative but to perform night work. It is but just that the worker should earn a greater pay than for ordinary work to compensate him to some extent for the inconvenience.

Naric vs. Naric – When the tour of duty of a laborer falls at nighttime [between 10:00 PM and 6:00 AM], the receipt of overtime pay will not preclude the right to night differential pay. The latter is payment for work done during the night while the other payment for the excess of the regular eight-hour work. If overtime work falls within the period covered by

night differential , premiums for overtime work should first be integrated into the regular hourly

rate of the employee before computing night shift pay

Night Shift Differential Not WaivableMercury Drug vs. Dayao – Additional compensation for nighttime work is founded on public policy, hence the same cannot be waived.

Burden of Proof of Payment the employer who has custody of pertinent

documents that can prove the fact of payment has the burden of proving a claim for night shift differential pay (National Semiconductor (HK) Distribution, Ltd. vs. NLRC and Santos)

The burden of proving that payment of such benefit has been made rests upon the party who will suffer if no evidence at all presented by either party. (Seaborne Carriers Corporation vs. NLRC)

f. Overtime WorkARTICLE 87. Overtime work. – Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twenty-five percent (25%) thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof.

Note: rate of overtime pay for a regular day – 25%rate of overtime pay for a holiday – 30%

Overtime Pay – Compensation for work rendered in excess of 8 hours a day Overtime pay is computed by multiplying the

overtime hourly rate by the number of hours worked in excess of 8. (National Shipyards and Steel Corp. vs. CIR)

Rationale The additional time to his work has many effects, he

puts in more effort, physical and/or mental; he is delayed in going home to his family; he might have no time for relaxation; he might miss important pre-arranged engagements which justify for the extra compensation of overtime pay. (PNB vs. PEMA)

Naric vs. Naric Workers Union – Receipt of overtime pay does not preclude right to NSD.

Overtime Rate Based on Regular Wage

The term “regular base pay” excludes money received in different concepts such as Christmas bonus and other fringe benefits. (Bisig ng Manggagawa vs. Philippine Refining Co. )

In the computation of overtime pay, the premium pay for work done on Sundays, holidays and at night and other fringe benefits which are occasionally and not ruglarly, received and not by all employees, should not be added to the basic pay. (Caltex vs. CIR)

Premium Pay; When Included or Excluded in Computing Overtime Pay Unless there is an agreement more favorable to the

worker, the overtime rate for is 30% of the rate for the 1st 8 hours on a holiday or rest day. Thus, the holiday or rest day premium should first be added to the regular base pay before computing the overtime pay on such day.

CBA May Stipulate Higher Overtime Pay RatePNB vs. PEMA – The basis of computation of overtime pay beyond that is required by Art. 87 must be the CBA.

Conversion of Monthly to Daily Rate; Actual Work Days as DivisorPALEA vs. PAL – The divisor in computing an employee’s basic daily rate should be the actual working days in a year. The number of offdays are not to be counted precisely because on such offdays, an employee is not required to work.

How “Work Day” is Counted A day is understood to be the 24-hour period which

commences from the time the employee regularly starts to work

Work in excess of 8 hours w/n a work day is considered as overtime regardless of whether this is performed in a work shift other than at which employee regularly works (National Dev. Vs. CIR)

Factual and Legal Basis of Claim An express instruction from the employer to the

employee to render overtime pay is not required. It is sufficient that the employee is permitted to work.

Neither is an express approval by a superior a prerequisite to make overtime work compensable. In the case of Manila Railroad Co. vs. CIR the Court held that :

If the work performed was necessary, or that it benefited the company or that the employee could not abandon his work at the end of his eight hour work because there was no substitute ready to take

his place and he performed overtime services upon the order of his immediate superior, notwithstanding the fact that there was a standing circular to the effect that before overtime work may be performed with pay, the approval of the corresponding department head should be secured, such overtime services are compensable in spite of the fact that said overtime services were rendered without the prior approval of the Department Head. (Reotan vs. National Rice and Corn Corp.)

However, there are decisions that during Sundays and Holidays, written authority is needed for overtime work (Global Inc., vs. Atienza)

Neither is overtime claim justified for days where no work was required and no work could be done by employees on account of shutdown due to electrical power interruptions, machine repair and lack of raw materials. (Durabuilt vs. NLRC)

Sundays and holidays cannot be considered as workdays in the computation of overtime compensation of the crew members of a vessel merely on the allegation that being on board a vessel on these days was “part and parcel of” and “inherent” in their work. (William Lines vs. Lopez)

Action to Recover Compensation Estoppel and laches cannot be invoked against

employees in an action for the recovery of compensation for past overtime work.

Overtime pay in arrears retroacts to the date when services were actually rendered.

Waiver or QuitclaimGen. Rule: NO waiver or quitclaim of overtime payException: waiver is in exchange for certain benefits

Overtime Pay Integrated in Basic Salary Agreement that overtime pay will be integrated in

basic salary is not per se illegal; however, there should have been express agreement to that effect and that the mathematical result shows that the agreed legal wage rate and the overtime pay, computed separately, are equal to or higher than the separate amounts legally due

Compressed Work Week (45 hours in 5 days) Another exception to the non-waiver of overtime

pay Under this scheme the number of work days is

reduced but the number of work hours in a day is increased to more than 8, but no overtime pay maybe claimed.

f1. Undertime vs. OvertimeARTICLE 88. Undertime not offset by overtime. – Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required in this Chapter.

NWSA vs. NWSA Consolidated Unions & Sto. Domingo vs. Phil. Rock Products – Where a worker incurs undertime hours during his regular daily work said undertime hours should not be offset against the overtime hours.The proper method should be to deduct the undertime hours from the accrued leave but to pay the employee the overtime compensation to which he is entitled. Where the employee has exhausted his leave credits, his unertime may simply be deducted from his day’s wage, but he should still be paid his overtime compensation for work in excess of 8 hours a day.

f2. Emergency Overtime WorkARTICLE 89. Emergency overtime work. – Any employee may be required by the employer to perform overtime work in any of the following cases:

a. When the country is at war or when any other national or local emergency has been declared by the National Assembly (Congress) or the Chief Executive;

b. When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity;

c. When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature;

d. When the work is necessary to prevent loss or damage to perishable goods; and

e. Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer.

Any employee required to render overtime work under this Article shall be paid the additional compensation required in this Chapter.

Other Instance mentioned in the IRR Book III Rule ISECTION 10. Compulsory overtime work. —

f. When overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.

In cases not falling within any of these enumerated in this Section, no employee may be made to work beyond eight hours a day against his will.

f3. ComputationARTICLE 90. Computation of additional compensation. – For purposes of computing overtime and other additional remuneration as required by this Chapter, the “regular wage” of an employee shall include the cash wage only, without deduction on account of facilities provided by the employer.

g. Validity of Compressed Work WeekMERALCO Workers Union vs. MERALCOGen. Rule: The right to overtime pay cannot be waived however if there is a compressed workweek proposed same shall be valid if the following concurring conditions are met:

1. the employees voluntarily agree to work nine (9) hours a day from Monday to Friday;

2. that there will not be any diminution whatsoever in the weekly or monthly take-home pay and fringe benefits of the employees;

3. the value of the benefits that will accrue to the employees under the proposed work schedule is more than, or at least commensurate with or equal to, the one-hour overtime pay that is due them during weekdays based on the employees’ quantification

4. the one-hour overtime pay of the employees will become due and demandable if ever they are permitted or made to work on any Saturday during the effectivity of the new working time arrangement, since the agreement between the employees and management is that there will be no Saturday work in exchange for a longer workday during weekdays;

5. the work of the employees does not involve strenuous physical exertion and they are provided with adequate rest periods or “coffee breaks” in the morning and afternoon; and

6. the effectivity of the proposed working time arrangement shall be of temporary duration as determined by the Minister of Labor and Employment.

DEPARTMENT ADVISORY No. 2 Series of 2009Guidelines on the Adoption of Flexible Work Arrangements (FWAs)

I .Purpose – to assist and guide ERs and EEs in the implementation of various FWAs as one of the coping mechanisms and remedial measures in times of economic difficulties and national emergencies. Adoption of FWAs is considered as better alternative than the outright termination of the services of the employees or the total closure of the establishments. Anchored on voluntary basis and conditions mutually acceptable to both the ER and EEs, it is recognized as beneficial in terms of reduction of business costs and helps in saving jobs while maintaining competitiveness and productivity in industries.

II. Concept – The Dept. recognizes the desirability and practicality of FWAs that may be considered by ERs after consultation with the EEs, taking into account the adverse consequence of the situation on the performance and financial condition of the company.

Flexible work arrangements refer to alternative arrangements or schedules other than the traditional or standard work hours, workdays and workweek.

The effectivity and implementation of any of the FWAs provided herein shall be temporary in nature.

III. Flexible Work ArrangementsThe following are the FWAs which labor and management may consider:

1. Compressed Workweek wherein 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 pursuant to the provisions of Dept. Advisory No. 02, series of 2004, dated Dec. 2, 2004.

2. Reduction of Workdays wherein the normal workdays per week are reduced but should not last for more than 6 months.

3. Rotation of Workers wherein the employees are rotated or alternately provided work within the workweek.

4. Forced Leave wherein the employees are required to go on leave for several days or weeks utilizing their leave credits if there are any.

5. Broken-time schedule wherein the work schedule is not continuous but the work hours within the day or week remain.

6. Flexi-holidays schedule wherein the employees agree to avail the holidays at some other days provided there is no diminution of existing benefits as a result of such arrangement.

Under these FWAs, the ERs and the EEs are encouraged to explore alternative schemes under any agreement and company policy or practice in order to cushion and negate the effect of the loss of income of the EEs.

IV. Administration of Flexible Work ArrangementsThe parties to the flexible work schemes shall be

primarily responsible for its administration. In case of difference of interpretation, the following guidelines shall be observed:

1. The difference shall be treated as grievances under the applicable grievance mechanism of the company.

2. If there is no grievance mechanism or if this mechanism is inadequate, the grievance shall be referred to the Reg. Office which has jurisdiction over the workplace for appropriate conciliation.

3. To facilitate the resolution of grievances, employers are required to keep and maintain, as part of their records, the documentary requirements proving that the flexible work arrangement was voluntarily adopted.

V. Notice RequirementPrior to its implementation, the ER shall notify the

Dept. through the Regional Office which has jurisdiction over the workplace, of the adoption of any of the above FWAs. The notice shall be in the Report Form attached to this advisory.

The Regional Office shall conduct an ocular visit to validate whether the adoption of the FWAs is in accordance with this issuance.

4. Weekly Rest Periodsa. CoverageARTICLE 91. Right to weekly rest day. –a. It shall be the duty of every employer, whether

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

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

IRR Book III Rule III

SECTION 1. General statement on coverage. — This Rule shall apply to all employers whether operating for profit or not, including public utilities operated by private persons.

b. Employee PreferenceIRR Book III Rule IIISECTION 4. Preference of employee. — The preference of the employee as to his weekly day of rest shall be respected by the employer if the same is based on religious grounds. The employee shall make known his preference to the employer in writing at least seven (7) days before the desired effectivity of the initial rest day so preferred.

Where, however, the choice of the employee as to his rest day based on religious grounds will inevitably result in serious prejudice or obstruction to the operations of the undertaking and the employer cannot normally be expected to resort to other remedial measures, the employer may so schedule the weekly rest day of his choice for at least two (2) days in a month.

Gen. Rule: Employees preference must be respected by employer.Exception: If such preference is so serious as it will prejudice or maybe an obstruction to the operation of the business, then, employer may schedule the rest day for at least 2 days in a month according to the preference of the employee.

c. Work on a Rest Day ARTICLE 92. When employer may require work on a rest day. – The employer may require his employees to work on any day: (EUAPNO) (MEMORIZE)

a. In case of actual or impending Emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life and property, or imminent danger to public safety;

b. In cases of Urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which the employer would otherwise suffer;

c. In the event of Abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures;

d. To Prevent loss or damage to perishable goods;e. Where the Nature of the work requires

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

f. Under Other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment.

IRR Book III Rule IIISECTION 6. When work on rest day authorized. — An employer may require any of his employees to work on his scheduled rest day for the duration of the following emergencies and exceptional conditions:

a. In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety;

b. In case of urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer;

c. In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures;

d. To prevent serious loss of perishable goods; e. Where the nature of the work is such that the

employees have to work continuously for seven (7) days in a week or more, as in the case of the crew members of a vessel to complete a voyage and in other similar cases; and

f. When the work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.

No employee shall be required against his will to work on his scheduled rest day except under circumstances provided in this Section: Provided, However, that where an employee volunteers to work on his rest day under other circumstances, he shall express such desire in writing, subject to the provisions of Section 7 hereof regarding additional compensation.

d. Compensation for Rest DayARTICLE 93. Compensation for rest day, Sunday or holiday work. - (a) Where an employee is made or permitted to work on his scheduled rest day, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage. An employee shall be entitled to such additional compensation for work performed on Sunday only when it is his established rest day.

Premium Pay; Rest Day

For work done on a rest day the employer must pay the employee:1. His regular remuneration or 100%2. Premium pay which is an additional sum of at

least 30% of the regular wage.

e. Compensation for SundayARTICLE 93. Compensation for rest day, Sunday or holiday work. (b) When the nature of the work of the employee is such that he has no regular workdays and no regular rest days can be scheduled, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage for work performed on Sundays and holidays. Sunday work entails premium pay only if it is the

employee’s rest day.

f. Compensation for Special DayARTICLE 93. Compensation for rest day, Sunday or holiday work. (c) Work performed on any special holiday shall be paid an additional compensation of at least thirty percent (30%) of the regular wage of the employee. Where such holiday work falls on the employees scheduled rest day, he shall be entitled to an additional compensation of at least fifty per cent (50%) of his regular wage.

Special Holidays/Days (NAL) (MEMORIZE)1. Ninoy Aquino Day – August 212. Alls Saints Day – November 13. Last Day of the Year – December 31

5. Regular HolidaysE.O. 203 and RA 9177 (NMAGLINEBCR) (MEMORIZE)

1. New Year’s Day – January 1 2. Maundy Thursday – movable date3. Good Friday – movable date4. Araw ng Kagitingan – April 95. Labor Day – May 16. Independence Day – June 127. National Heroes Day – Last Sunday of August8. Eid’l Fitr – movable date9. Bonifacio Day – November 3010. Christmas Day – December 2511. Rizal Day –December 30

a. CoverageIRR Book III Rule IVSECTION 1. Coverage. — This rule shall apply to all employees EXCEPT:

a. Those of the government and any of the political subdivision, including government-owned and controlled corporation;

b. Those of retail and service establishments regularly employing less than ten (10) workers;

c. Domestic helpers and persons in the personal service of another;

d. Managerial employees as defined in Book Three of the Code;

e. Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.

b. Holiday PayARTICLE 94. Right to holiday pay. –a. Every worker shall be paid his regular daily wage

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

b. The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate; and

c. As used in this Article, “holiday” includes: New Years Day, Maundy Thursday, Good Friday, the ninth of April, the first of May, the twelfth of June, the fourth of July, the thirtieth of November, the twenty-fifth and thirtieth of December and the day designated by law for holding a general election.

Holiday pay is a one-day pay given to an employee even if he does not work on a regular holiday.

If a worker comes to work on a regular holiday he earns extra pay equivalent to his regular rate.

The purpose of holiday pay is to prevent diminution of the monthly income of the workers on account of work interruptions declared by the state.

But to receive holiday pay, certain conditions must be met. One of which is that the employee should not have been absent without pay on the working day preceding the regular holiday.

Holiday of a Part-Timer If the work is partial, the pay should also be partial. The amount of holiday pay of a part-timer is to be

determined on a case-to-case basis. The basis is any of the following, whichever yields the highest amount: 1. the regular wage per day;

2. the basic wage on the working day preceding the regular holiday if the employee is present or on leave with pay on the last working day immediately prior to the regular holiday;

3. the average of his basic wages for the last seven working days for employees who are paid by results; or

4. the basic wage on the particular holiday, if worked.

IRR Book III Rule IVSECTION 4. Compensation for holiday work. — Any employee who is permitted or suffered to work on any regular holiday, not exceeding eight (8) hours, shall be paid at least two hundred percent (200%) of his regular daily wage. If the holiday work falls on the scheduled rest day of the employee, he shall be entitled to an additional premium pay of at least 30% of his regular holiday rate of 200% based on his regular wage rate.

Formulas to Compute Wages on HolidaysFor Regular Holidays:

A. If it is an employee’s regular work day If unworked – 100% If worked –

o 1st 8 hours – 200%o Excess of 8 hours – plus 30% of hourly

rate on said day B. If it is an employee’s rest day

If unworked – 100% If worked –

o 1st 8 hours – plus 30 % of 200%o Excess of 8 hours – plus 30% of hourly

rate on said day

For Special Holidays:A. If unworked –

No pay, unless there is a favorable company policy or CBA granting payment of wages on special days if unworked.

B. If worked – 1st 8 hours – plus 30% of the daily rate of

100% Excess of 8 hours – plus 30% of hourly rate

on said dayC. Falling on an employee’s rest day and if worked-

1st 8 hours – plus 50% of the daily rate of 100%

Excess of 8 hours – plus 30% of hourly rate on said day

For those declared as Special Working Holidays: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.

c. Overtime Pay on a HolidayIRR Book III Rule IVSECTION 5. Overtime pay for holiday work. — For work performed in excess of eight hours on a regular holiday, an employee shall be paid an additional compensation for the overtime work equivalent to his rate for the first eight hours on such holiday work plus at least 30% thereof.

Where the regular holiday work exceeding eight hours falls on the scheduled rest day of the employee, he shall be paid an additional compensation for the overtime work equivalent to his regular holiday-rest day for the first 8 hours plus 30% thereof. The regular holiday rest day rate of an employee shall consist of 200% of his regular daily wage rate plus 30% thereof.

d. AbsencesIRR Book III Rule IVSECTION 6. Absences. — a. All covered employees shall be entitled to the

benefit provided herein when they are on leave of absence with pay. Employees who are on leave of absence without pay on the day immediately preceding a regular holiday may not be paid the required holiday pay if he has not worked on such regular holiday.

b. Employees shall grant the same percentage of the holiday pay as the benefit granted by competent authority in the form of employee's compensation or social security payment, whichever is higher, if they are not reporting for work while on such benefits.

c. Where the day immediately preceding the holiday is a non-working day in the establishment or the scheduled rest day of the employee, he shall not be deemed to be on leave of absence on that day, in which case he shall be entitled to the holiday pay if he worked on the day immediately preceding the non-working day or rest day.

Absences on Regular HolidayLeave of absence with pay

Entitled to holiday premium (100%)

Leave of absence without pay

Didn’t work on holiday – no pay

immediately preceding regular holiday

Worked on holiday – with 200% pay

A day immediately preceding regular holiday is non-working holiday/ rest day

To avail of holiday premium, he must work immediately preceding the non-working holiday / rest day.

Note: Two Succeeding Holidays Must work the day before the holiday

otherwise not entitled to 100% unworked holiday pay.

If absent the day before the 1st holiday buto Works during the 1st holiday = 200%o Works during the 1st Holiday and unworked

on the 2nd holiday = 200% for the 1st holiday, 100% for the 2nd holiday.

e. Holiday during ShutdownIRR Book III Rule IVSECTION 7. Temporary or periodic shutdown and temporary cessation of work. —a. In cases of temporary or periodic shutdown and

temporary cessation of work of an establishment, as when a yearly inventory or when the repair or cleaning of machineries and equipment is undertaken, the regular holidays falling within the period shall be compensated in accordance with this Rule.

b. The regular holiday during the cessation of operation of an enterprise due to business reverses as authorized by the Secretary of Labor and Employment may not be paid by the employer.

Summary: Holiday during shutdown – If it is temporary only, employee must be compensated. But, if there is a cessation of the operation, employee may not be paid due to business reverses/

f. Monthly-paid EmployeesInsular Bank of Asia vs. Inciong – Art. 94 of the Labor Code is clear that monthly paid employees are not excluded from the benefits of holiday pay. Sec. 2, Rule IV, Book III of the Implementing Rules and Policy Instruction No. 9 are null and void since in the guise of clarifying the Labor Code’s provision on holiday pay, they in effect amended them by enlarging the scope of their exclusion.

Chartered Bank vs. Ople – The divisor assumes an important role in determining WON holiday pay is already included in the monthly-paid employee’s salary and in the computation of his daily rate.

Union of Filipro Employees vs. Vivar –Employer cannot claim reimbursement of overtime pay because the daily rate is still the same before and after grant of holiday pay to its monthly-paid employees– The grant of holiday pay to monthly-paid employees shall be effective from Oct. 23, 1984, the date of promulgation of the Insular case.

g. Field PersonnelUnion of Filipro Employees vs. Vivar – Under Art. 82 of the Labor Code, filed personnel are not entitled to holiday pay.

h. Private School TeachersIRR Book III Rule IVSECTION 8. Holiday pay of certain employees. —a. Private school teachers, including faculty members

of colleges and universities, may not be paid for the regular holidays during semestral vacations. They shall, however, be paid for the regular holidays during Christmas vacation;

Note: The teachers will be paid for Christmas vacation on Dec. 25 and 30. However, the case of Jose Rizal College shall be controlling over the IRR.

i. Piece-rate WorkersIRR Book III Rule IVSECTION 8. Holiday pay of certain employees. —b. Where a covered employee, is paid by results or

output, such as payment on piece work, his holiday pay shall not be less than his average daily earnings for the last seven (7) actual working days preceding the regular holiday; Provided, However, that in no case shall the holiday pay be less than the applicable statutory minimum wage rate.

j. Seasonal WorkersIRR Book III Rule IVSECTION 8. Holiday pay of certain employees. —c. Seasonal workers may not be paid the required

holiday pay during off-season when they are not at work.

k. Holiday on a SundayWellington vs. Trajano – the SC ruled that a legal holiday falling on a Sunday creates no legal obligation for the employer to pay extra, aside from the usual holiday pay, to its monthly paid employees.

l. Double Holiday

Double holiday happens when two REGULAR holidays fall on the same date. If this happens, the compensation of the worker shall be 300% if worked and 200% if unworked.

Example: On April 9, 1993, it was the Araw ng Kagitingan and at the same time a Good Friday.

Q: Why 300% if worked? A: 100% on the Araw ng Kagitingan and another 100% on the Good Friday plus 100% regular wage. So all in all, the employee shall receive 300%.

Q: Why 200% if unworked?A: 100% on the Araw ng Kagitingan and another 100% on the Good Friday.

6. Service Incentive LeaveARTICLE 95. Right to service incentive leave. –a. Every employee who has rendered at least one year

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

b. This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay of at

least five days and those employed in establishments regularly

employing less than ten employees or in establishments exempted from granting this

benefit by the Secretary of Labor and Employment after considering the viability or financial condition of such establishment.

c. The grant of benefit in excess of that provided herein shall not be made a subject of arbitration or any court or administrative action.

IRR Book III Rule VSECTION 1. Coverage. — This rule shall apply to all employees EXCEPT:

a. Those of the government and any of its political subdivisions, including government-owned and controlled corporations;

b. Domestic helpers and persons in the personal service of another;

c. Managerial employees as defined in Book Three of this Code;

d. Field 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 are paid a fixed amount for performing work

irrespective of the time consumed in the performance thereof;

e. Those who are already enjoying the benefit herein provided;

f. Those enjoying vacation leave with pay of at least five days; and

g. Those employed in establishments regularly employing less than ten employees.

SECTION 2. Right to service incentive leave. — Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay.

SECTION 3. Definition of certain terms. — The term "at least one-year service" shall mean service for not less than 12 months, whether continuous or broken reckoned from the date the employee started working, including authorized absences and paid regular holidays unless the working days in the establishment as a matter of practice or policy, or that provided in the employment contract is less than 12 months, in which case said period shall be considered as one year.

Part-Time Workers entitled to the full benefit of the yearly 5 days of SIL

with pay. The availment and commutation of the same can be

proportionate to the daily work rendered and the regular daily salary, respectively.

“Contract” Workers Teachers of private schools on contract basis are

entitled to service incentive leave. ( Cebu Institute of Technology vs. Hon. Blas Ople )

Exception; Burden of Proof It is the employer’s duty, not of the employees, to

prove that there are less than ten (10) employees in the company. If it fails to discharge its task, the employer must be deemed to be covered by the rule, notwithstanding the employees’ failure to allege the exact number of employees of the corporation. (Murillo, et al. vs. Sun Valley Realty)

Sick Leave and Vacation Leave as Voluntary Benefits While the five-day service incentive leave is

mandatory because it is legally required, vacation and sick leave are voluntary.

The purpose of vacation leave is to afford to a laborer a chance to get a much needed rest to replenish his worn out energies and acquire a new vitality to enable him to efficiently perform his

duties and not merely to give him additional salary or bounty. This privilege must be demanded in its opportune time and if an employee allows the years to go by in silence, he waives it. It becomes a mere concession or act of grace of the employer. (Cuajao vs. Chua Lo Tan)

In the administration of the leave privileges of employees, the employer may impose certain conditions like for other voluntary benefits. And in cases of dispute, the court will resolve the same by construing the employer’s written policy on the matter. (Baltazar vs. San Miguel Brewery, Inc.)

Commutation of Sick Leave Sick leave and vacation leave benefits and their

conversion to cash are voluntary, not statutory, in character. Entitlement to them must be proved.

IRR Book III Rule VSECTION 4. Accrual of benefit. — Entitlement to the benefit provided in this Rule shall start December 16, 1975, the date the amendatory provision of the Code took effect.

SECTION 5. Treatment of benefit. — The service incentive leave shall be commutable to its money equivalent if not used or exhausted at the end of the year. The basis of the conversion shall be the salary rate

at the date of commutation.

SECTION 6. Relation to agreements. — Nothing in the Rule shall justify an employer from withdrawing or reducing any benefits, supplements or payments as provided in existing individual or collective agreements or employer's practices or policies.

Paternity LeaveR.A. No. 8187 It took effect on July 5, 1996, grants paternity leave

of seven days with full pay to all married male employees in the private and public sectors.

It available only for the first four deliveries of the legitimate spouse with whom the husband is cohabiting, that is, the husband and the wife must be living together.

“Delivery” includes childbirth, miscarriage or abortion.

The purpose of paternity leave is to enable the husband to lend support to his wife during the period of recovery and/or in the nursing of the newly born child.

Revised Implementing Rules and Regulations of R.A. No. 8187 for the Private SectorSection 3. Conditions to entitlement of paternity leave benefits. – A 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 4 hereof; and

d. his wife has given birth or suffered a miscarriage.

Section 4. Application of leave. – The married male employee shall apply for paternity leave with his employer within a reasonable period of time from the expected date of delivery by the pregnant spouse, or within such period as may be provided by company rules and regulations or by collective bargaining agreement; provided that prior application for leave shall not be required in case of miscarriage.

Section 5. Availment. – Paternity leave benefits shall be granted to the qualified employee after the delivery by his wife, without prejudice to an employer allowing an employee to avail of the benefit before or during the delivery; provided, that the total number of days shall not exceed seven (7) days for each delivery.

Section 6. Benefits. – The employee is entitled to his full pay, consisting of basic salary, for the seven (7) days during which he is allowed not to report for work; provided, that his pay shall not be less than the mandated minimum wage.

Section 7. Non-commutation of benefits. – In the event that the paternity leave benefit is not availed of, said leave shall not be convertible to cash.

Section 8. Non-diminution clause. – Nothing in these Rules shall be construed to reduce or replace any existing benefits of any kind granted under existing laws, decrees, executive orders, or any contract, agreement or policy between employer and employee.

Section 9. Crediting of existing benefits. – Where a male employee is already enjoying the paternity leave benefits by reason of contract, company policy or collective bargaining agreement, the following rules shall apply:

a. If the existing paternity leave benefit is greater than the benefit herein provided, the greater benefit shall prevail;

b. If the existing paternity leave is less than that provided herein, such existing benefit shall be adjusted to the extent of the difference.

However, where a contract, company policy or collective bargaining agreement provides for an emergency or contingency leave without specific provisions on paternity leave, the paternity leave as herein provided shall apply in full.

Parental (Solo Parent) LeaveR.A. No. 8972 - Solo Parents’ Welfare Act of 2000 took effect on November 28, 2000.

Section 8. Parental Leave – In addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year shall be granted to any solo parent employee who has rendered service of at least one (1) year.

The seven-day parental leave shall be non-cumulative.

A solo parent is entitled to the parental leave if the following conditions are met:

a. He/She has rendered at least one (1) year of service whether continuous or broken at the time of the effectivity of the Act;

b. He/She notified his/her employer of the availment thereof within a reasonable time period; and

c. He/She has presented a Solo Parent Identification Card to his/her employer.

Unutilized parental leave is not convertible to cash unless otherwise agreed. Noncompliance with the law may make the employer liable for damages.

The law also grants other benefit, flexible work schedule, and housing benefits.

The law prohibits discrimination against any solo parent with respect to terms and conditions of employment on account of his/her status.

“Solo Parent” is defined as any individual who falls under any of the following categories: (RDSILDAUFA) (MEMORIZE)

1. A woman who gives birth as a Result of rape or crimes against chastity, even without a final conviction of the offender; Provided, that the mother keeps and raises the child;

2. Parent left solo or alone with the responsibility of parenthood due to Death of spouse;

3. Parent left solo or alone with the responsibility of parenthood while the spouse is detained, or is Serving sentence for a criminal conviction for at least one (1) year;

4. Parent left solo or alone with the responsibility of parenthood due to physical and/or mental Incapacity of spouse as certified by a public medical practitioner;

5. Parent left solo or alone with the responsibility of parenthood due to Legal separation or de facto separation from spouse for at least one (1) year: Provided, That he or she is entrusted with the custody of the children;

6. Parent left solo or alone with the responsibility of parenthood due to Declaration of nullity or annulment of marriage as decreed by a court or by a church: Provided, that he/she is entrusted with the custody of the children;

7. Parent left solo or alone with the responsibility of parenthood due to Abandonment of spouse for at least one (1) year;

8. Unmarried mother/father who has preferred to keep and rear his/her child/children instead of having others care for them or give them up to a welfare institution;

9. Any other person who solely provides parental care and support to a child or children provided he/she is a duly licensed as a Foster parent by the DSWD or duly appointed legal guardian by the court;

10. Any 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: Provided, That such abandonment, disappearance, or absence lasts for at least one (1) year.

Section 3 of R.A. No. 8972 - “Children” refers to those living with and dependent upon the solo parent for support who are unmarried, unemployed and below eighteen (18) years of age, or even eighteen (18) year and above but are incapable of self-support because of mental and/or physical defected/disability.

VAWC LeaveR.A. 9262 – Anti-Violence Against Women and Their Children Act of 2004SEC. 43. Entitled to Leave. – Victims under this Act shall be entitled to take a paid leave of absence up to ten (10) days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations,

extendible when the necessity arises as specified in the protection order.

Any employer who shall prejudice the right of the person under this section shall be penalized in accordance with the provisions of the Labor Code and Civil Service Rules and Regulations. Likewise, an employer who shall prejudice any person for assisting a co-employee who is a victim under this Act shall likewise be liable for discrimination.

7. Service ChargesARTICLE 96. Service charges. – All service charges collected by hotels, restaurants and similar establishments shall be distributed at the rate of eighty-five percent (85%) for all covered employees and fifteen percent (15%) for management. The share of the employees shall be equally distributed among them. In case the service charge is abolished, the share of the covered employees shall be considered integrated in their wages.

Note:85% - to employees15% - to management

If service charge is abolished, the share of employees is deemed integrated in their wages.

IRR Book III Rule VISECTION 1. Coverage. — This rule shall apply only to establishments collecting service charges such as hotels, restaurants, lodging houses, night clubs, cocktail lounge, massage clinics, bars, casinos and gambling houses, and similar enterprises, including those entities operating primarily as private subsidiaries of the Government.

SECTION 2. Employees covered. — This rule shall apply to all employees of covered employers, regardless of their positions, designations or employment status, and irrespective of the method by which their wages are paid except to managerial employees.

As used herein, a "managerial employee" shall mean one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign, or discipline employees or to effectively recommend such managerial actions. All employees not falling within this definition shall be considered rank-and-file employees. (MEMORIZE)

SECTION 3. Distribution of service charges. — All service charges collected by covered employers shall be distributed at the rate of 85% for the employees and

15% for the management. The 85% shall be distributed equally among the covered employees. The 15% shall be for the disposition by management to answer for losses and breakages and distribution to managerial employees at the discretion of the management in the latter case.

SECTION 4. Frequency of distribution. — The shares referred to herein shall be distributed and paid to the employees not less than once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days.

SECTION 5. Integration of service charges. — In case the service charges is abolished the share of covered employees shall be considered integrated in their wages. The basis of the amount to be integrated shall be the average monthly share of each employee for the past twelve (12) months immediately preceding the abolition of withdrawal of such charges.

SECTION 6. Relation to agreements. — Nothing in this Rule shall prevent the employer and his employees from entering into any agreement with terms more favorable to the employees than those provided herein, or be used to diminish any benefit granted to the employees under existing laws, agreement and voluntary employer practice.

Tips Where a restaurant or similar establishment does not collect service charges but has a practice or policy of monitoring and pooling tips given voluntarily by its customers to its employees, the pooled tips should be monitored, accounted for and distributed in the same manner as the service charges. (No. VII [C], DOLE Handbook on Workers Statutory Monetary Benefits.)