questions during orals(final coverage)

8/14/2019 Questions During Orals(Final coverage)

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MARQUEZ QUESTIONS DURING ORALS: FINALS

DISCLAIMER: COMMENTS AT HAND WERE NOT INTENTIONALLY INSERTED TO OFFEND,DISHONOR OR DISRESPECT ANY PERSON. PLEASE BEAR WITH THE GRAMMAR AND SENTENCECONSTRUCTION DUE TO INADEQUATE TIME FOR EDITING. FEEL FREE TO INSERT YOURCORRECTIONS. SHOULD THERE BE ANY DOUBT ON THE INFORMATIONS SUPPLIED PLEASE DO

NOT RELY SOLELY ON THIS NOTE ON ACCOUNT THAT MINIMAL INACCURACIES MAY EXIST.GOODLUCK AND HAPPY READING!

***(this mark appears on some of the questions just to note that Marquez emphasized thequestion during orals & might be a possible question in the exam)

THE 2011 NLRC RULES OF PROCEDURE: 30% IN THE FINAL EXAMINATION

EX: I AM AN EMPLOYEEE OF USC. I WAS NOT PAID MY 13TH MONTH PAY AMOUNTING TO 15K,I WANT TO SUE USC, WHO HAS A JURISDICTION OF MY CASE? ANS: LABOR ARBITER.

WHERE IS THE VENUE OF MY COMPLAINT? ANS: REGIONAL ARBITRATION BRANCH OFNLRC IN CEBU CITY, BECAUSE YOUR WORKPLACE IS IN CEBU CITY.

REMEMBER:VENUE IS DEFINED BY RULES OF PROCEDURE OF NLRCNOT BY LAW WHILEJURISDICTION IS DEFINED BY THE LABOR CODE/LAW.

WHAT ABOUT VENUE OF CLAIMS OF OVERSEAS WORKERS? ANS: AT THE CHOICE OF THECOMPLAINANT EITHE AT THE PLACE WHERE HE RESIDESOR THE PRINCIPAL OFFICE OFTHE AGENCY.

***IF YOU FILE A COMPLAINT FOR VIOLATION OF LABOR STANDARDS, DO YOU NEED TO PAYA DOCKET FEE? ANS: NO, IT IS PROHIBITED UNDER THE LABOR CODE.

WHAT IS YOUR BASIS?ART 277(D) OF LABOR CODE:NO DOCKET FEE SHALL BE ASSESSED

IN LABOR STANDARD DISPUTES. IN ALL OTHER DISPUTES, DOCKET FEES MAY BE ASSESSEDAGAINST THE FILING PARTY, PROVIDED THAT IN BARGAINING DEADLOCK, SUCH FEES SHALLBE SHARED EQUALLY BY THE NEGOTIATING PARTIES.

WHAT IS THE PURPOSE OF A SUMMON? ANS: TO ACQUIRE JURISDICTION OVER THEPERSON OF THE RESPONDENT.HOW DOES THE COURT ACQUIRE JURISDICTION OVER THE PETITIONER/COMPLAINANT? ANS:PETITIONER HAS ALREADY DEEMED SUBMITTED HIMSELF TO THE JURISDICTION OFTHE LABOR ARBITER BY FILING A COMPLAINT.

HOW MANY INITIAL CONFERENCES ARE AUTHORIZED UNDER THE RULES OF PROCEDURE?ANS: TWO (2) SETTINGS

WHAT IS THE PURPOSE OF CONDUCTING AN INITIAL HEARING / MANDATORY CONFERENCE?The Labor Arbiter shall personally preside over & take full control of the proceedings & may beassisted by the Labor Arbitration Associate. ARA - DAT1.To amicably settle the case upon a fair compromise; -2.To determine real parties in interest;3.To determine the necessity of amending the complaint & including all causes of action;4.To define & simplify the issues in the case;5.To enter into admissions or stipulations of facts6.To thresh out all other preliminary matters


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WHAT LAW AUTHORIZES COMPROMISE AGREEMENT? ANS: NEW CIVIL CODE. ART 2028.REMEMBER: NOT LC

DOES THE COMPROMISE AGREEMENT REQUIRE APPROVAL FROM THE LABOR ARBITER? ANS:YES.

WHAT IS THE EFFECT OF A COMPROMISE AGREEMENT? ONCE APPROVED BY THE LABORARBITER, IT IS CALLED A JUDGMENT BASED ON COMPROMISE & IT BECOMES FINAL& EXECUTORY.

IN CASE OF BREACH OF COMPROMISE AGREEMENT WHAT IS THE REMEDY BY THE AGGRIEVEDPARTY? ANS: FILE A MOTION TO ENFORCE THE COMPROMISE AGREEMENT.

WHAT ARE THE GROUNDS TO DISMISS A COMPLAINT?ANS: Lack of jurisdiction over the subject matter, improper venue, res judicata,prescription & forum shopping. (LIR-PF)

WHAT IS FORUM SHOPPING?

- INITIATING COMPLAINTS IN DIFFERENT TRIBUNALS INVOKING THE SAME CAUSE OFACTION, SUBJECT MATTER & ISSUES IN THE HOPE ACQUIRING A FAVORABLE DECISION..

WHAT IS A CERTIFICATE OF NON FORUM SHOPPING?The Certificate of Non-Forum Shopping as provided by Supreme Court Circular 04-94is mandatory and should accompany pleadings filed before the NLRC. Since the NLRC is a quasi

judicial agency hence initiatory pleading filed before it should be accompanied by a certificate ofnon-forum shopping. Such certification should be signed not by the lawyer but by theparty. Except if you are the in-house lawyer of such company.

WHAT IS RES JUDICATA?

ANS: BARRED BY PRIOR JUDGMENT.

IF THE COMPLAINT IS DISMISSED BY THE LABOR ARBITER, CAN YOU FILE A MOTION FORRECONSIDERATION?

ANS: I CANNOT FILE A MFR OR EVEN MAKE AN APPEAL BEC IT IS PROHIBITED.

HOW ABOUT A MOTION FOR POSTPONEMENT?ANS: IT IS ALLOWED BUT MUST BE FILED ATLEAST 3 DAYS BEFORE MEDIATION.WHY? BEC LABOR ARBITER EXPECTS THE PARTIES TO BE PRESENT ON THE PRESCRIBEDSCHEDULE.

WHAT IS THE EFFECT OF NON APPEARANCE OF COMPLAINANT IN TWO (2) SETTINGS OFINITIAL HEARING? ANS: IT WILL RESULT TO DISMISSAL OF THE COMPLAINT BY THE

LABOR ARBITER.

CAN THE COMPLAINANT FILE A MOTION FOR RECONSIDERATION IF THE COMPLAINTWASDISMISSED DUE TO NON APPEARANCE?

ANS: NO. IT IS PROHIBITED.

WHAT IS THE REMEDY? ANS: FILE A MOTION TO RE-OPEN/REVIVE THE CASE ANYTIME.


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WHAT IS THE PRESCRIPTIVE PERIOD FOR MONEY CLAIMS?ANS: THREE (3) YRS FROM THETIME THE CAUSE OF ACTION ACCRUES.

IF THE RESPONDENTFAILED TO APPEAR IN TWO (2) SETTINGS, WHAT IS THE EFFECT OFNON APPEARANCE?

ANS: IT IS DEEMED A WAIVER OF HIS RIGHT TO FILE A POSITION PAPER.

WHAT IS THE REMEDY OF RESPONDENT?ANS: HE CAN FILE A MOTION TO SET ASIDE THE ORDER OF WAIVER AND MUST BEMADE UNDER OATH. A PARTY DECLARED TO HAVE WAIVED HIS / HER RIGHT TO FILE APOSITION PAPER MAY AT ANYTIME AFTER NOTICE THEREOF AND BEFORE THE CASE ISSUBMITTED FOR DECISION FILE A MOTION UNDER OATH TO SET ASIDE THE ORDER OFWAIVER UPON PROPER SHOWING THAT HIS/HER FAILURE TO APPEAR WAS DUE TOJUSTIFIABLE AND MERITORIOUS GROUNDS.

***WHO MUST PRESIDE THE INITIAL HEARING? ANS: THE LABOR ARBITER. CAN HEDELEGATE IT? NO. THE LABOR ARBITER MUST PERSONALLY PRESIDE.

WHEN CAN A COMPLAINANT AMEND HIS COMPLAINT AS A MATTER OF RIGHT? ANS:

BEFORE THE COMPLAINANT FILES HIS POSITION PAPER. THIS CAN BE DONE EVEN WITHOUTPERMISSION FROM THE LABOR ARBITER.

WHAT IS THE PERIOD TO FILE A POSITION PAPER?ANS: TEN (10) CALENDAR DAYS FROM TERMINATION OF CONCILIATION-MEDIATIONHEARING.

WHAT ARE THE CONTENTS OF A POSITION PAPER?Contents of position paper:~ SECTION 4 RULE 7, Civil Procedure,as amended byAdministrative Matter 00-2-10,May 1, 2000 provides that the affiant has read the pleading and that the allegations therein aretrue and correct according to his personal knowledge and based on authentic records.

~ Verificationis important because the case may be decided based on position papers alonewithout need of conducting formal hearings. Violation of this requirement would either mean thatsuch pleading would be expunged from the records and the party concerned subjected tosanctions.~ Position papers should also be accompanied by affidavit of the witnesses which shall takeplace of the latters testimony. (RULE V SECTION 3)

Purpose of affidavit~ To take the place of the witnesses direct testimony.~ Support allegations in the position paper.

If the LA decides to conduct hearing, there would be no need of direct examination or Q&A

because the position paper would take the place of the direct testimony of the witness. The onlyrequirement would be for the affiant to identify the affidavit and to offer the testimony of thewitness. And thereupon, proceed to the cross-examination of such witness.

DOES THE POSITION PAPER NEED TO CONTAIN A CERTIFICATE OF NON FORUM SHOPPING?NO.

DOES IT NEED TO BE VERIFIED. ANS: YES. Verification is important because the case


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may be decided based on position papers alone without need of conducting formalhearings. Violation of this requirement would either mean that such pleading wouldbe expunged from the records and the party concerned subjected to sanctions.

WHEN DO YOU SUBMIT YOUR REPLY POSITION PAPER? ANS: Within 10 CALENDAR daysfrom receipt of position paper of the adverse party a reply may be filed on a date

agreed upon & during the schedule set before the Labor Artbiter.

WHAT ARE THE CONTENTS OF A REPLY POSITION PAPER? ANS: IT SHALL NOT ALLEGE ORPROVE FACTS AND ANY CAUSES OF ACTION NOT INCLUDED IN THE ORIGINAL

COMPLAINT OR PETITION OR RAISED IN THE POSITION PAPER.

AFTER FILING OF THE POSITION PAPER DOES THE LABOR ARBITER NEED TO CONDUCTFORMAL HEARING OR JUST DECIDE THE CASE? ANS: HE MAY MOTU PROPIO DECIDE THECASE IN HIS OWN DISCRETION.

IF IN CLARIFICATORY HEARING ONE OF THE PARTIES DID NOT APPEAR, WHAT IS THEEFFECT?ANS: PROCEEDINGS MAY BE CONDUCTED EX PARTE.

IN AN ADVERSE DECISION FROM THE LABOR ARBITER, DOES THE AGGRIEVED PARTY HAVE AREMEDY?YES. APPEAL TO NLRC.

WHEN CAN YOU MAKE AN APPEAL TO NLRC? ANS: WITHIN 10 CALENDAR DAYS FROMRECEIPT OF THE ORDER OF LABOR ARBITER. IF THE ORDER IS FROM THE REGIONALDIRECTOR I CAN APPEAL WITHIN 5 CALENDAR DAYS.

What are the other requirements to perfect appeal?1.Proof of payment of appeal fee.2.Under oath3.Filed on time4.File a memorandum of appeal containing:- Grounds relied upon and arguments in support thereof.- Relief prayed for.- Statement of date when decision was received.- Proof of service to other party.

Appeal fee is jurisdictional.

~ Marquez comments that docket fee and appeal fee are not the same!

HOW IS THE APPEAL PERFECTED IN MONETARY AWARD?ANS: BY POSTING OF A CASH OR SURETY BOND EQUIVALENT TO THE AMOUNT

APPEALED FROM. THE CASH OR SURETY BOND EXCLUDES DAMAGES & ATTORNEYSFEES.

DO YOU NEED TO PAY AN APPEAL FEE? ANS: YES. IT IS NOT THE SAME AS DOCKET FEE.IS THERE A NEED FOR A MEMORANDUM?YES. STATING 3PS. A MERE NOTICE OF APPEALIS NOT SUFFICIENT.

REQUISITES TO PERFECT APPEAL1.The appeal shall be: WV-MCA2.Filed within the reglementary period provided in section 1 of this Rule;3.Verified by the appellant himself


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4.In the form of a memorandum of appeal which: GRD1. state the grounds relied upon & the arguments in support thereof;2. the relief prayed for3. date of the appellant appealed decision, award or order;5.In three legibly typewritten & printed copies;6.Accompanied by: 3PS1. Proof of payment of the required appeal fee & legal research fee2. Posting of a cash or surety bond;3. Proof of service upon the other parties

DOES A MEMORANDUM NEED TO HAVE A CERTIFICATE AGAINST FORUM SHOPPING? YES.

DOES A MEMORANDUM HAVE TO BE TAKEN UNDER OATH?YES.

SHOULD A COPY OF THE APPEAL BE SERVED TO THE ADVERSE PARTY?YES.

IF THE 10TH DAY TO FILE AN APPEAL FALLS ON A HOLIDAY OR WEEKEND, WHAT IS THEREMEDY?ANS: IT CAN BE FILED THE NEXT WORKING DAY BECAUSE THE LAW SPEAKSOF 10 CALENDAR DAYS.

WHAT IS MEANT BY 10 CALENDAR DAYS?ANS: 10 CALENDAR DAYS INCLUDES SAT SUN &HOLIDAY.

***IF YOU FILE AN APPEAL BEYOND THE 10 DAY PERIOD, WHAT IS THE EFFECT ON THEDECISION OF THE LABOR ARBITER?

ANS: IT BECOMES FINAL & EXECUTORY & CANNOT BE REVERSED BECAUSE OF THEDOCTRINE ON IMMUTABILITY OF JUDGMENT.

HOW MUCH IS THE APPEAL FEE NOW?ANS: P500.OO.

~ Is it possible to file a Motion to Reduce Bond?~ Yes, see Rule 6, Section 6. However, you must file it within the reglementary period toappeal and the act of filing does not stop the running of the period to appeal. Note that theappeal is perfected once a bond is filed.~ Once the bond has been reduced, the employer cannot file a Motion for Reconsideration asthis would amount to an extension of the period to perfect an appeal.~ If the NLRC has the authority to entertain a motion to reduce bond, then it can also grantextension to file bond.

We, therefore, rule that for petitioner's failure to post the required bond within the reglementaryperiod after it has been ordered reduced, the NLRC committed no grave abuse of discretion indismissing petitioner's appeal.

The NLRC may grant or dismiss the appeal. Can the aggrieved party file a motion forreconsideration?

YES. It must be filed within 10 calendar days from receipt of the dismissal of the appeal.

What if the Motion for Reconsideration is denied?The decision will become final and executory.


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If there is no Motion for Reconsideration filed before the NLRC, the decision becomes final andexecutory and therefore there is no way by which another government body can review the case;the only remedy is a motion for reconsideration.

If the decision of the NLRC becomes final and executory due to the denial of the MFR,is there an appeal of the decision of the NLRC?

NO. There is no appeal from the decision of the NLRC but there is still a remedy under RULE 65of the Rules of Court on the ground of grave abuse of discretion. The ground of prima facieevidence of abuse of discretion is a ground for appealing the decision of the LA to the NLRC.

Will the filing of a Petition for Certiorari stay the decision of the NLRC?NO. However, to enjoin enforcement of the decision of the NLRC which is final and executory,under Rule 65, you have to apply for the issuance of a TRO and eventually a writ ofinjunction. There is no way of preventing the decision of the NLRC from becoming final andexecutory except by the filing of MOTION FOR RECONSIDERATION within the prescribed periodof 10 days. Since the motion for reconsideration has been denied, the decision will have tobecome final and executory and subject to execution. There is no more appeal from thatdecision but there is a Special Civil Action [Certiorari] on the ground of grave abuse ofdiscretion. To prevent execution of the decision, the aggrieved party can apply for the issuance

of a Temporary Restraining Order.

If you apply for a TRO, for how many days will it be valid?60 days. If issued by RTC, 20 days.

Can it be extended?NO.

~ Note that a Special Civil Action is an original action and the RTC, CA and SC have concurrentand original jurisdiction. However, always follow the principle of HIERARCHY OF COURTS. Atthis stage where the NLRC decision is the subject of the certiorari, the RTC does not have

jurisdiction because the RTC is of the same level as the NLRC and the LA is of the same level as

the lower courts.

From the CA, is there still a Motion For Reconsideration?YES. To be filed within 15 days, which the CA may either grant or deny.

From the CA, is there a remedy?YES. Appeal by Certiorari under Rules 45of the Rules of Court to be filed within 15 daysfrom receipt of the decision of the CA on the ground of pure questions of law. If is involves theapplication of the rules or the law, it is a question of law.

~ The SC is not a trier of factsbut factual findings of the SC may be reviewed in exceptionalcases.

Will the Appeal by Certiorari under Rule 45 prevent the decision of the CA frombecoming final and executory?It will become final and executory. But if you file an appeal by certiorari under Rule 45 within theprescribed period, the decision of the CA will be stayed.NLRC: COMPOSITION (RA 9347 AMENDING ART 212 TO 216, RATIONALIZING THECOMPOSITION & FUNCTION OF THE NLRC EFFECTIVE AUG. 26, 2006

The Commission shall be composed of a Chairman & 23 Commissioners.COMMISSION EN BANC:


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The Commission shall sit en banc only for purposes of:1.promulgating rules & regulations governing the hearing & disposition of cases before its

Divisions & Regional Arbitration Branches and2.formulation of policies affecting its administration & operations.It may, on temporary or emergency basis, allow cases within the jurisdiction of any division to beheard by any other division whose docket allows the additional workload and such transfer will

not expose litigants unnecessary additional expense.

The Chairman shall call the Commission to an en banc session at least twice a year preferably onthe 1st week of June & 1st week of December, to deliberate & decide on any matter before it.However, a majority of all the members of the Commission may call a Special en banc session todiscuss & decide on urgent & important matters which need immediate action.

DIVISIONS:The Commission shall exercise its adjudicatory and all other powers, functions & dutiesthrough its 8 division. Each Division shall consist of one member from the public sector whoshall act as the Presiding Commissioner and one member each from the worker & employeessectors, respectively.

Of the 8 Divisions, the first, second, third, fourth, fifth & sixth divisions shall haveexclusive territorial jurisdiction over appealed cases coming from Luzon; the seventh Divisionappealed cases from the Visayas Region; and the eightDivision appealed cases from Mindanaoincluding those from ARMM.

The Chairman of the Commission may convene & presideover the session of any Division toconsider any case pending before it and participate in its deliberations, if in his/her judgementhis/her presence therein will best serve the interest of labor justice. He/ She shall not howeverparticipate in the voting by the Division, except when he/she is acting as presiding commissionerof the Division in the absence of the regular Presiding Commissioner.

CHAIRMAN Shall preside over all sessions of the Commission en banc. He is the

Presiding Commissioner of the First Division. In case of the effective absence or incapacity ofthe Chairman, the Presiding Commissioner of the Second Division shall be the Acting Chairman.

The Chairman, aided by the Executive Clerk of the Commission shall have administrativesupervision over the Commission & its Regional Arbitration Branches and all its personnelincluding the Executive Labor Arbiters & Labor Arbiters.

FINALITY OF THE DECISIONS, ORDERS, RESOLUTIONS OF NLRC1.Except as provided in Sec 9 of Rule X, the decisions, resolutions or orders of the Commission

shall become final & executory after 10 calendar days from receipt thereof by the counselor authorized representative or the parties if not assisted by counsel or representative.

RULE X SEC 9: EFFECTS OF DEFIANCE The order or resolution enjoining the performance

of illegal acts shall be immediately executory in accordance with the terms thereof. In case ofnon compliance, the Commission shall impose such sanction and shall issue such orders as maybe necessary to implement the said order or resolution, including the enlistment of lawenforcement agencies having jurisdiction of the area for the purpose of enforcing the same.

1.ENTRY OF JUDGMENT Upon the expiration of 10 calendar days period, the decision,resolution or order shall be entered in the book of entries of judgment.

In the absence of return cards, certifications from the post office or the courier or other proofs of


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service to the parties, the Executive Clerk or Deputy Executive Clerk shall consider the decision,resolution or order as final & executor after 60calendar days from the date of mailing.

LABOR ARBITERS DECISIONIn the resolution of cases on appeal, the Commission in the exigency of the service

shall be assisted by a Labor Arbiter who may be directed to study, review, hear & receive

evidence & submit reports thereon.

CONTRACTING ARRANGEMENT: 20% IN THE FINAL EXAM

WHAT IS LABOR CONTRACTING?ANS: COMPLETION OR PERFORMANCE OF A JOB, WORK, OR SERVICE WITHIN AGIVEN PERIOD. COULD BE EITHER A JOB CONTRACTING OR LABOR ONLY

CONTRACTING.

***WHERE IS IT FOUND?ANS: IT IS FOUND IN THE IMPLEMENTING RULES & REGULATIONS OF NLRC.

WHAT LAW GOVERNS LABOR CONTRACTING?ANS: IT IS GOVERNED BY LABOR CODE ART 106-109

NOTE: THE DEPARTMENT ORDER NO 14 APPLIES TO SECURITY GUARDS AND CONSISTENT W/DEPARTMENT ORDER NO O18-0 BUT THE LATTER DID NOT SUPERSEDE DO 14 INSOFAR ASSECURITY GUARDS ARE CONCERNED.

WHAT IS A TRILATERAL RELATIONSHIP?ANS: In legitimate contracting, there exists a trilateral relationship under which there is acontract for a specific job, work or service between the principal and the contractor orsubcontractor, and a contract of employment between the contractor or subcontractor and itsworkers. The principal, which decides to farm out a job or service to a subcontractor

The subcontractor, which has the capacity to independently undertake the performance ofthe job or service; and The employees engaged by the subcontractorto accomplish the job or service

IS THERE A CONTRACTUAL RELATIONSHIP BETWEEN A PRINCIPAL & SUBCONTRACTOR? YES.

REMEMBER:IN CONTRACTING ARRANGEMENT- THE SUBJECT MATTER IS PERFORMANCE OFWORK, JOB OR SERVICE. NOT JUST ANY SERVICE BUT A SPECIFIC SERVICE, JOB OR WORK.EXAMPLES OF SPECIFIC JOB, WORK/SERVICE: JANITORS, SECURITY GUARDS.

***EXAMPLE: IF USC HIRED SERVICES OF A SECURITY AGENCY TO PROVIDE SECURITYGUARDS FOR THE SCHOOL, IS THAT A CONTRACTING ARRANGEMENT? YES. BECAUSE USC

DECIDED NOT TO HIRE SECURITY GUARDS DIRECTLY, INSTEAD, THEY HIRED THE SERVICESOF AN AGENCY TO PROVIDE SECURITY GUARDS FOR THE SCHOOL.WHY IS IT THAT EMPLOYERS ENGAGE IN CONTRACTING ARRANGEMENT RATHER THANDIRECT HIRING?

ANS: BECAUSE OF THE EXPERTISE & EXPERIENCE OF THE AGENCIES & ALSO FORREASONS OF ECONOMY ( REDUCING COST FOR TRAININGS ETC).

IS A CONTRACTING ARRANGEMENT THE SAME AS RECRUITMENT & PLACEMENT?ANS: NO. THE RULES IN CONTRACTING ARRANGEMENT EXCLUDE RECRUITMENT &


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PLACEMENT.

WHO MAY APPLY/REGISTER AS A CONTRACTOR?ANS: ANY PERSON (WHETHER NATURAL OR JURIDICAL INCLUDING UNIONS) ASLONG AS IT COMPLIES WITH THE REQUIREMENTS.

WHO ARE THE TWO (2) TYPES OF EMPLOYERS IN CONTRACTING ARRANGEMENT?1.DIRECT EMPLOYER E.G. SECURITY AGENCY OF SECUIRTY GUARDS OR ANY PERSON

WHO HAVE PERSONS IN ITS EMPLOY. USC IS A DIRECT EMPLOYER REGARDING ITSTEACHERS.

2.INDIRECT EMPLOYERKNOWN AS STATUTORY EMPLOYER. USC AS TO SEC GUARDS OFSECURITY AGENCY.

***THEREFORE, IF JOHN HAS NO EMPLOYEES & HIRES SERVICES OF A BLDG CONTRACTORAND THE BLDG CONTRACTOR ALSO HIRES CONSTRUCTION WORKERS. IS JOHN A DIRECTEMPLOYER?

ANS: NO. BEC HE HAVE NO EMPLOYEES OF HIS OWN.

SO, WHAT IS JOHNS RELATION TO THE CONSTRUCTION WORKERS? HE IS AN INDIRECT

EMPLOYER.WHAT IF THE CONTRUCTION WORKERS HIRED BY THE BLDG CONTRACTOR WERE NOT PAIDTHEIR WAGES?

ANS: JOHNS LIABILITY IS THAT OF A DIRECT EMPLOYER. HE IS JOINTLY ANDSEVERALLY LIABLE WITH THE CONTRACTOR.

The principal has limited liability. Should the contractor fail to pay the wages, the principal isliable only to the extent of the work performed and only with respect to the payment of wagesThe principal is jointly and severally liable with the subcontractor for payment of all employeeswages to the extent of the work performed under the contract

IS LABOR CONTRACTING ILLEGAL PER SE?

ANS: LABOR CONTRACTING IS NOT ILLEGAL PER SE ONLY WHEN IT IS LABOR ONLYCONTRACTING THAT IT BECOMES ILLEGAL.

***WHAT ARE THE THREE (3) CONDITIONS OF A LEGAL CONTRACTOR?TEST OF LEGITIMATE CONTRACTOR:1ST CONDITION: THE PRINCIPAL CANNOT CONTROL ALL MATTERS CONNECTED W/ THEEXPERTISE OF THE EMPLOYEE OR ITS PERFORMANCE FOR THE CONDITION TO BE SUFFICIENTEXCEPT AS TO THE RESULTS THEREOF. IN THE 1ST PLACE THE PRINCIPAL HAS NOEXPERTISE ON THE SERVICES OF SECURITY GUARD.2ND CONDITION: IT HAS A SUBSTANTIAL CAPITAL OR INVESTMENT. IT PROVIDES

ADEQUATE RESOURCES OR EQUIPMENTS TO EMPLOYEES. (GUNS, UNIFORMS,ACCESSORIESETC)3RD CONDITION:THERE IS AN AGREEMENT BETWEEN THE PRINCIPAL & THE CONTRACTOR

The following are requisites of a LEGITIMATE contracting or subcontracting: The contractor or subcontractor carries on a distinct and independent business and

undertakes to perform the job, work or service on its own account and under itsown responsibility; according to its own manner and method, and free from thecontrol and directions of the principal in all matters connected with theperformance of the work, except as to the results thereof; (NO EE-ER relationsexists)

The contractor or subcontractor has substantial capital or investment shown by:


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Adequacy of resources actually and directly used May refer to subscribed capital stocks for corporations Tools, equipments, implements, machineries, uniforms, protective gear or

safety devises Operating costs such as training and overhead costs The agreement between the principal and contractor or subcontractor assures

the contractual employees to entitlement to all labor and occupationalsafety standards, free exercise of the right to self-organization, securityof tenure, and social welfare benefits

FROM THE EXAMPLE GIVEN:USC HAS THE OBLIGATION TO PAY THE SECURITY AGENCY FOR THE PAYMENT OF SECURITYSERVICES. IN RETURN, THE SECURITY AGENCY HAS THE OBLIGATION TO USC TO PERFORMTHE SERVICES.

WHAT IF USC DEFAULTS THE PAYMENT OF SERVICES OF SECURITY AGENCY, IS THERE ACAUSE OF ACTION.

ANS: YES DUE TO BREACH OF DUTY.

WHAT IS THE ACTION? FILE A CIVIL DISPUTE (NOTE: IT MUST BE RAISED IN A REGULARCOURT)

***WHAT IS THE OBLIGATION OF USC TO THE SECURITY GUARDS:1.AS AN INDIRECT EMPLOYER - THERE IS A LIABLITY OF USC IF THE SECURITY AGENCY

DEFAULTS ITS PAYMENT OF WAGES ONLY TO THE EXTENT OF WORK PERFORMED BYTHE SECURITY GUARDS.

2.AS A PRINCIPALAS A RULE, USC AS AN INDIRECT EMPLOYER OF SECURITY GUARDS HASNO OBLIGATION TO THEM. BUT, IN CASE THE SECURITY AGENCY DEFAULTEDPAYMENT OF SALARY OF THE SECURITY GUARDS, THEN, THE PRINCIPAL(USC) HASTHE OBLIGATION TO PAY THE WAGES BEC HE BECOMES A DIRECT EMPLOYER ONLYFOR A LIMITED PURPOSE OF PAYING WAGES AS IF THE PRINCIPAL(USC) EMPLOYED

THE GUARDS HIMSELF.

WHAT IS THE CONSTITUTIONAL BASIS FOR THIS RULE OF HOLDING THE PRINCIPAL JOINTLY& SEVERALLY LIABLE WITH THE CONTRACTOR? ANS: THE PROTECTION TO LABORCLAUSE.

IS IT NOT UNFAIR THAT THE PRINCIPAL WILL ALSO BE HELD LIABLE FOR DEFAULTSIMPUTABLE TO THE CONTRACTOR? ANS: NO. IT IS NOT BECAUSE THE PRINCIPAL IS ALLOWEDREIMBURSEMENT WITH WHATEVER HE HAS PAID TO THE SECURITY GUARDS.

WHO IS AN INDIVIDUAL INDEPENDENT CONTRACTOR?ANS: Individuals with special skills, expertise or talent enjoy the freedom to offer their services asindependent contractors.

WHAT IS THE MEANING OF WAGES IN CONTRACTING AGREEMENT:ANS: IT IS NOT LIMITED TO A MINIMUM WAGE BUT IT ALSO COVERS LABOR STANDARDBENEFITS (HOLIDAY, 13TH MONTH, PREMIUM PAY).

***DOES IT INCLUDE RETIREMENT PAY? NO. DOES IT INCLUDE SEPARATION PAY?NO. IT IS THE SOLE OBLIGATION OF THE CONTRACTOR. IT IS NOT FOUND IN LABOR CODE.

WHAT IS THE LIABILITY OF AN INDIRECT EMPLOYER(USC) IF THERE IS AN INCREASE IN WAGE


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RATES?ANS: THE CONTRACT IS DEEMED AMENDED, THEREFORE USC WILL AUTOMATICALLY INCLUDETHE INCREMENT ON THE MINIMUM WAGE.

WHO SHOULD PAY THE INCREASE IN WAGE RATES?ANS:SEC AGENCY SHOULD PAY THE SEC GUARDS AS THEIR EMPLOYER. THE GUARDS SHOULD

NOT GO AFTER UNLESS THE CONTRACTOR REFUSES TO PAY.

WHAT IF CONTRACTOR REFUSES TO PAY THE EES ON THE INCREASE WAGE RATE?ANS: EMPLOYEES CAN DEMAND FROM THE PRINCIPAL.

WHAT IF THE PRINCIPAL REFUSES TO PAY THE EMPLOYEES ON THE INCREASE WAGE RATE, ISTHE PRINCIPAL JUSTIFIED?

ANS: IT IS NOT ALLOWED BEC HE IS JOINTLY & SEVERALLY LIABLE W/ THE CONTRACTOR.

IF THE PRINCIPAL PAYS, IS HE ENTITLED TO REIMBURSEMENT BY THE CONTRACTOR? NO.THE LAW IS CLEAR THAT IF THERE IS AN INCREASE IN WAGE RATE IT SHALL BE BORNE BYTHE PRINCIPAL.Note: This is a different liability of the principal from the unpayment of wages of the employees

by the contractor because in the latter the principal is entitled to reimbursement.

WHAT IS THE PREVAILING WAGE RATE NOW IN CEBU? WAGE RATE IS P305.00

WHAT ARE THE ELEMENTS TO CONSTITUTE LABOR ONLY CONTRACTING?

1.The contractor or subcontractor does not have substantial capital or investment which relatesto the job, work or service to be performed and the employees recruited, supplied or placed bysuch contractor or subcontractor are performing activities which are directly related to the mainbusiness of the principal; or2.The contractor does not exercise the right to control over the performance of the work of thecontractual employee

WHAT ARE THE ELEMENTS OF LABOR ONLY CONTRACTING UNDER THE IMPLEMENTINGRULES?(i) The contractor or subcontractor does not have substantial capital or investment which relatesto the job, work or service to be performed and the employees recruited, supplied or placed bysuch contractor or subcontractor are performing activities which are directly related to the mainbusiness of the principal; or

(ii) the contractor does not exercise the right to control over the performance of the work of thecontractual employee.The foregoing provisions shall be without prejudice to the application of Article 248 (C ) of theLabor Code, as amended.

IF THERE IS LABOR ONLY CONTRACTING WHAT IS THE LIABILITY OF THE PRINCIPAL?

Under a Labor-only contracting arrangementThe following are the effects:

The subcontractor will be treated as the agent of the principal. Since the act of an agent is theact of the principal, representations made by the subcontractor to the employees willbind the principal

The principal will become the employer as if it directly employed the workers engaged toundertake the subcontracted job or service. It will be responsible to the for all their


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entitlements and benefits under the labor laws The principal and the subcontractor will be solidarily treated as the employer The employees will become employees of the principal, subject to the classifications of

employees under Art. 28 of the Labor CodeIf the labor-only contracting activity is undertake by a legitimate labor organization, a petition forcancellation of union registration may be filed against it, pursuant to Art. 239 (e).

IN LABOR ONLY CONTRACTING, CAN THE PRINCIPAL CLAIM REIMBURSEMENT FROM THECONTRACTOR?

ANS: NO. BEC THE CONTRACTOR IS DEEMED HIS AGENT. ACCESSORY FOLLOWS THEPRINCIPAL.

***WORKERS PREFERENCE:MARQUEZ: I OWN A COMPANY ENGAGED IN MANUFACTURING BUSINESS. I AM THE PRES &

YOU ARE ALL MY EMPLOYEES & MS. AGOT IS MY GEN MANAGER WHO OVERSEES MYEMPLOYEES & I PAY HER 500K A MONTH. I GET WATER FROM MAYNILAD & ELECTRIC FROM

VECO. I WANTED TO BORROW MONEY FROM A BANK, BUT THE BANK ASKED FOR ACOLLATERAL, I GUARANTEED MY PROPERTY. BANK AGREED FOR A REAL ESTATE MORTGAGE.

AFTER RELEASE OF MONEY, I WENT TO CASINO & LOST SUBSTANTIAL MONEY. I HAVE NO

MORE MONEY TO PAY THE EMPLOYEES. WORSE, BANK NOTIFIED FORECLOSURE OF THEMORTGAGE. I FAILED TO REDEEM & I WAS EVICTED & WAS FORCED TO CLOSE MY BUSINESS.I OWE VECO, I OWE MAYNILAD, I OWE THE GOVERNMENT, I OWE MY EMPLOYEES.

QUESTIONS RELATED TO FACTS:

WOULD YOU CONSIDER YOURSELF AS WORKERS UNDER ART 110? YES. ART. 110. Workerpreference in case of bankruptcy. - In the event of bankruptcy or liquidation of anemployers business, his workers shall enjoy first preference as regards their wage s and othermonetary claims, any provisions of law to the contrary notwithstanding. Such unpaid wages andmonetary claims shall be paid in full before claims of the government and other creditors may bepaid.

SCOPE:

Unpaid wages Other monetary claimsDO YOU HAVE WORKERS PREFERENCE IN THIS CASE?YES.

IS YOUR WORKERS PREFERENCE LIMITED TO UNPAID WAGES?

ANS: NO. IT ALSO INCLUDES OTHER MONETARY CLAIMS.

CAN YOU SUE YOUR EMPLOYER IN THE LABOR ARBITER? ANS: YES, BECAUSE I HAVE ACAUSE OF ACTION.

WHAT WILL YOU DO IN ORDER TO ASSERT YOUR WORKERS PREFERENCE?ANS: I WILL FILE A PETITION TO DECLARE MY COMPANY BANKCRUPT IN THE

REGULAR COURT. ONCE THE COURT HAS DECLARED THE COMPANY BANKCRUPTTHAT IS THE TIME I CAN EXERCISE MY PREFERENCE. I WILL FILE IN REGULARCOURTS.

WHY DOES THE LAW REQUIRE JUDICIAL DECLARATION OF BANKRUPTCY OR LIQUIDATION?ANS: INORDER TO GIVE CREDITORS THE OPPORTUNITY TO PRESENT THEIR CLAIMS.


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WOULD THE WORKERS PREFERENCE BE SUPERIOR AGAINST BANK MORTGAGE CREDIT?

ANS: NO. BEC THE MORTGAGE IN THE BANK IS A SPECIAL PREFERENCE CREDITWHILE THE WORKERS PREFERENCE IS AN ORDINARY PREFERENCE CREDIT.

HOW ABOUT BETWEEN THE OTHER CREDITORS (VECO,MAYNILAD) AND WORKERS

PREFERENCE, WHICH ONE WILL ENJOY FIRST PREFERENCE?ANS: WORKERS PREFERENCE PREVAILS, PROVIDED THERE HAS BEEN A JUDICIAL

DECLARATION OF BANKCRUTCY.

WHAT IS THE LAW GOVERNING BANKCRUPTCY?ANS: FRIAFINANCIAL REHABILITATION & INSOVENCY ACT

WHAT ARE THE TWO CONCEPT OF ATTYS FEE?1.) Ordinary claims for services rendered by an attorney (goes to the attorneys

pocket)2.) Extraodrinary (Art. 111) attorneys fees in the concept of damages awarded tothe party-litigant

DOES THE LABOR CODE AUTHORIZE RECOVERY OF ATTYS FEES?ANS: YES, UNDER ARTICLE 111.ART. 111. Attorneys fees.- (a) In cases of unlawful withholding of wages, the culpable partymay be assessed attorneys fees equivalent to ten percent of the amount of wages recovered.

(b) It shall be unlawful for any person to demand or accept, in any judicial or administrativeproceedings for the recovery of wages, attorneys fees which exceed ten percent of the amountof wages recovered.

Unlawful withholding of wages is prohibited except when there is consent or debt due to theemployee.

DOES IT REFER TO ORDINARY OR EXTRAORDINARY ATTYS FEE?ANS: ART 111 REFERS TO EXTRAORDINARY CONCEPT OF ATTYS FEE.

WHEN IS WITHHOLDING OF WAGES LAWFUL / UNLAWFUL?ANS: UNLAWFUL IF THERE IS NO CONSENT FROM THE EMPLOYEE OR WITHVITIATED CONSENT. LAWFUL IF W/ CONSENT; CONTRIBUTION TO SSS, PAG-IBIG,

TAX, PHILHEALTH OR OTHER LEGALLY DEDUCTABLE CONTRIBUTION.

ASIDE FROM ART 111 OF LABOR CODE IS THERE ANY INSTANCE OR LAW THAT AUTHORIZESRECOVERY OF ATTYS FEES?

ANS: YES, ARTICLE 2208 OF THE NEW CIVIL CODE.

Art. 2208.In the absence of stipulation, attorney's fees and expenses of litigation, other than

judicial costs, cannot be recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendant's act or omission has compelled the plaintiff to litigate with thirdpersons or to incur expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;


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(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy theplaintiff's plainly valid, just and demandable claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;

(8) In actions for indemnity under workmen's compensation and employer's liability laws;

(9) In a separate civil action to recover civil liability arising from a crime;

(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable that attorney's fees andexpenses of litigation should be recovered.

In all cases, the attorney's fees and expenses of litigation must be reasonable.

DOES THE NEW CIVIL CODE PUT A CEILING OF RECOVERY FOR ATTYS FEE?ANS: NO. IT DEPENDS ON THE DISCRETION OF THE COURT.

ARE NON- LAWYERS ALLOWED TO APPEAR BEFORE LABOR ARBITER AS A GEN RULE?ANS: AS A GENERAL RULE, NO.

WHAT IS THE EXCEPTION IN THE LC? YES. UNDER ART 222.ART. 222. Appearances and Fees.- (a) Non-lawyers may appear before the Commission orany Labor Arbiter only:

1. If they represent themselves; or 2. If they represent their organization or members thereof.

***HOW ABOUT THE EXCEPTIONS UNDER THE IMPLEMENTING RULES IN THE NON-APPEARANCE OF NON LAWYERS?

RULE III, SECS. 8 & 9, 2005 NLRC RULESNON LAWYERS MAY APPEAR BEFORE THE LABOR ARBITER OR COMMISSION IN

ANY OF THE FF CONDITIONS: PLM - AO1.HE REPRESENTS HIMSELF AS PARTY TO THE CASE;2.HE REPRESENTS A LEGITIMATE LABOR ORGANIZATION WHICH IS A PARTY TO THE CASE,

PROVIDED, HE PRESENTS TO THE COMMISSION OR LABOR ARBITER DURING THEMANDATORY CONFERENCE OR INITIAL HEARING: LAR

1. CERTIFICATIONS FROM BLR OR REGIONAL OFFICE OF DOLE ATTESTING THAT THEORGANIZATION IS LISTED IN THE ROSTER OF LEGITIMATE LABORORGANIZATION;

2. A VERIFIED CERTIFICATION ISSUED BY THE SECRETARY AND ATTESTED TO BY THEPRESIDENT OF THE SAID ORGANIZATION STATING THAT HE IS AUTHORIZEDTO REPRESENT THE SAID ORGANIZATION;

3. A COPY OF THE RESOLUTION OF THE BOARD OF DIRECTORS OF THE SAIDORGANIZATION GRANTING HIM SUCH AUTHORITY.

3.HE REPRESENTS MEMBERS OF A LEGITIMATE LABOR ORGANIZATION THAT IS EXISTING


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WITHIN THE EMPLOYERS ESTABLISHMENT WHO ARE PARTIES TO THE CASE,PROVIDED THAT HE PRESENTS:AM

1. A VERIFIED CERTIFICATION ATTESTING THAT HE IS AUTHORIZED BY SUCHMEMBERS TO REPRESENT THEM;

2. A VERIFIED CERTIFICATION ISSUED BY THE SECRETARY & ATTESTED TO BY THEPRESIDENT OF THE SAID ORGANIZATION STATING THAT A PERSON OR

PERSONS HE/SHE IS REPRESENTING ARE MEMBERS IN THEIR ORGANIZATIONWHICH IS EXISTING IN THE EMPLOYERS ESTABLISHMENT.

4.HE IS A DULY ACCREDITED MEMBER OF ANY LEGAL AID OFFICE RECOGNIZED BY DOJ ORIBP: PROVIDED, HE PRESENTS PROOF OF HIS ACCREDITATION & REPRESENTS APARTY TO THE CASE.

5.HE IS THE OWNER OR PRESIDENT OF A CORPORATION OR ESTABLISHMENT WHICH IS APARTY TO THE CASE: PROVIDED HE PRESENTS:AR

1. A VERIFIED CERTIFICATION ATTESTING THAT HE IS AUTHORIZED TO REPRESENTSAID CORPORATION OR ESTABLISHMENT;

2. A COPY OF THE RESOLUTION OF THE BOARD OF DIRECTORS OF SAIDCORPORATION OR OTHER SIMILAR RESOLUTION OR INSTRUMENT ISSUED BYSAID ESTABLISHMENT GRANTING HIM SUCH AUTHORITY.

WHO ARE THE SPECIAL TYPES OF WORKERS?ANS: APPRENTICEa worker who is covered by a written apprenticeship agreement with anindividual employer or any of the entities recognized under this Chapter.WHAT IS THE DIFFERENCE BETWEEN APPRENTICE & APPRENTICESHIP?

ANS: "Apprenticeship" means practical training on the job supplemented by relatedtheoretical instruction. An "apprentice" is a worker who is covered by a writtenapprenticeship agreement with an individual employer or any of the entitiesrecognized under this Chapter.

WHAT IS APPRENTICESHIP AGREEMENT & APPRENTICEABLE OCCUPATION?An "apprenticeable occupation" means any trade, form of employment or occupationwhich requires more than three (3) months of practical training on the job

supplemented by related theoretical instruction.

"Apprenticeship agreement" is an employment contract wherein the employer bindshimself to train the apprentice and the apprentice in turn accepts the terms oftraining.

WHAT TYPE INDUSTRY MAY ALLOWS APPRENTICESHIP?ANS: ART. 60. Employment of apprentices. - Only employers in the highly technicalindustries may employ apprentices and only in apprenticeable occupations approved by theSecretary of Labor and Employment.

WHAT AGENCY APPROVES APPRENTICESHIP PROGRAM?

ANS: TESDA (TECHNICAL EDUCATION SKILLS DEVT CENTER)INORDER TO REMOVE ANEMPLOYEE (APPRENTICE) FROM THE PROVISIONS OF THE LABOR CODE, THE INDUSTRY MUSTBE REGISTERED W/ TESDA. OTHERWISE, THEY WILL BE CONSIDERED REGULAR EMPLOYEES.

WHAT AGE IS ALLOWED FOR APPRENTICESHIP?ANS: LABOR CODE-14 YRS OLD (MALE OR FEMALE); IN THE IMPLEMENTING RULES15 YRS OLD (MALE AND FEMALE). BUT LABOR CODE PREVAILS.

WHY DOES THE LAW ALLOW APPRENTICESHIP AS EARLY AS 14Y/O?


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ANS: TO TRAIN THEM BECAUSE THIS AGE IS HIGHLY TRAINABLE.

WHAT IS THE PURPOSE OF APPRENTICESHIP? IS IT GOOD FOR THE ECONOMY?ANS: YES. BECAUSE THE GOVERNMENT HAS NO RESOURCES FOR TRAINING INSTEADTHEY ENCOURAGE APPRENTICESHIP PROGRAM BUT SUBJECT TO SOME CONDITION.

IS THE ESTABLISHMENT OF AN APPRENTICESHIP PROGRAM MANDATORY IN PRIVATEESTABLISHMENTS?

ANS: NO.

WHAT IS THE EXCEPTION?ANS: SECTION 41. Compulsory apprenticeship.(a) When grave national emergencies,particularly those involving the security of the state, arise or particular requirements of economicdevelopment so demand, the Secretary of Labor and Employment may recommend to thePresident of the Philippines the compulsory training of apprentices required in a certain trades,occupations, jobs or employment levels where shortage of trained manpower is deemed critical;

(b) Where services of foreign technicians are utilized by private companies in apprenticeabletrades said companies are required to set up appropriate apprenticeship programs.

***WHAT IS THE OTHER EXCEPTION???FINALS QUESTION( paki post sa FB,hehe)

HOW DO THE GOVERNMENT ENCOURAGE APPRENTICESHIP?ANS: THEY GIVE INCENTIVES TO EMPLOYER WHICH INCLUDES:1. DEDUCTABILITY OF TRADING COSTS.2. PAYMENT OF ONLY 1/2 OF THE TOTAL VALUE OF THE LABOR TRAINING EXPENSES.

HOW LONG IS THE PERIOD OF APPRENTICESHIP?ANS: NOT LESS THAN 3 MONTHS BUT LESS THAN 6 MONTHS.

IF THE PERIOD IS LESS THAN 3 MONTHS WOULD IT STILL BE APPRENTICESHIP?

ANS: NO. THEY ARE CONSIDERED LEARNERS.

ARE APPRENTICES ALSO ENTITLED TO REMUNERATION?ANS: YES. BUT NOT LESS THAN 75% OF THE MINIMUM WAGE. WHY ONLY 75%?BECAUSE THEY ARE NOT FULL BLOWN EMPLOYEES YET.

CAN AN EMPLOYER ASK APPRENTICES RENDER OVERTIME AS A RULE?ANS: NO, BUT W/ EXCEPTION, IF THE EMPLOYER LACKS MANPOWER TO DO THEWORK.

SUPPLEMENTAL NOTES ABOUT APPRENTICESHIP:

They are trainees No ER-EE relationshipno right to labor standards (SPECIAL TYPES OF WORKERS) Benefits derived by an employer for apprenticeship programs: Entitled to apply for tax deduction Employer can pay substandard rates No commitment to hire after termination of apprenticeship programTRAINING PERIODS CREDITEDSECTION 20. Hours of work. Hours of work of the apprentice shall not exceed themaximum number of hours of work prescribed by law, if any, for a worker of his age and sex.


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Time spent in related theoretical instructions shall be considered as hours of work and shall bereckoned jointly with on-the-job training time in computing in the agreement the appropriateperiods for giving wage increases to the apprentice.

An apprentice not otherwise barred by law from working eight hours a day may be requested byhis employer to work overtime and paid accordingly, provided there are no available regular

workers to do the job, and the overtime work thus rendered is duly credited toward histraining time.

WHEN CAN AN EMPLOYER NOT PAY THE REMUNERATION OF APPRENTICESHIP?ANS: THE GENERAL RULE: APPRENTICES ARE ENTITLED TO REMUNERATION.HOWEVER, IF THE APPRENTICESHIP IS PART OF THE SCHOOL CURRICULUM ( AREQUIREMENT FOR GRADUATION, TRAINING IN THE COURSE; THE DISCRETION

HERE IS W/ THE EMPLOYER) THEY ARE NOT ENTITLED TO WAGES.

ONCE APPRENTICESHIP IS COMPLETED, IS THE EMPLOYER REQUIRED TO HIRE THEAPPRENTICE AS A REGULAR WORKER?ANS: NO. IT IS DISCRETIONARY ON THE ER BECAUSE THE APPRENTICE HAS EARNED

ENOUGH SKILLS SO HE CAN APPLY ANYWHERE.

DURING APPRENTICESHIP, CAN AN ER VALIDLY TERMINATE APPRENTICESHIP AGREEMENT?ANS: YES, PROVIDED UNDER THESE SIX (6) INSTANCES (HABITUAL ABSENTEEISM,WILLFUL DISOBEDIENCE OF THE RULES & REGULATIONS, PHYSICAL CONDITION-NOT ABLE TO WORK, THEFT, DESTRUCTION OF PROPERTY, ENGAGING IN VIOLENCE)

CAN THE APPRENTICE TERMINATE HIS APPRENTICESHIP WITHIN SIX(6) MONTHS?ANS: YES BUT FOR THE FOLLOWING REASONS: SUBSTANDARD WORKINGCONDITIONS; REPEATED VIOLATIONS BY THE ER OF THE APPRENTICESHIP

AGREEMENT; CRUEL OR INHUMAN TREATMENT OF THE EMPLOYER OR HISSUBORDINATES; PERSONAL PROBLEM; BAD HEALTH OF THE APPRENTICE.

WHAT WILL HAPPEN IF THE APPRENTICE ABANDONS THE WORK W/O JUST CAUSE?ANS: NO CERTIFICATE OF COMPLETION SHALL BE GIVEN.

WHO ARE LEARNERS?ANS: Learners are persons hired as trainees in semi-skilled and other industrial occupations whichare non-apprenticeable and which may be learned through practical training on the job in arelatively short period of time which shall not exceed three (3) months.

WHAT IS THE EMPLOYABLE AGE OF LEARNERS?ANS: Employment of minors as learners.A minor below fifteen (15) years of age shall notbe eligible for employment as a learner. Those below eighteen (18) years of age may only beemployed in non-hazardous occupations.

WHEN CAN THE EMPLOYER HIRE LEARNERS?ANS: When learners may be hired. - Learners may be employed when no experiencedworkers are available, the employment of learners is necessary to prevent curtailment ofemployment opportunities, and the employment does not create unfair competition in terms oflabor costs or impair or lower working standards.

HOW LONG IS THE LEARNERSHIP?ANS: IT MUST NOT EXCEED THREE (3) MONTHS.


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modifications.

ARE THE EMPLOYERS REQUIRED TO HIRE THEM AS REGULAR WORKERS?ANS: NO. BUT IN ONE CASE DEAF-MUTE WORKERS IN ONE BANK WERE CONSIDERED BY THESC AS REGULAR EMPLOYEES BECAUSE THEIR CONTRACTS WERE RENEWED AFTER SIX(6)MONTHS OF SERVICE.

SUPPLEMENTAL NOTES

Handicapped workers earning capacity is impaired by reason of age, physical disability ormental deficiency

They are contractual workers***REMEMBER: HANDICAPPED WORKERS ARE NOT EMPLOYEES; THEY ARE TRAINEES AND THEPROVISIONS IN THE LABOR CODE DOES NOT APPLY TO THEM.

NOTE:HANDICAPPED WORKERS HAVE NO FIXED DURATION OF EMPLOYMENT.

Which is a broader term, handicapped or disabled workers? Disabled (not sure)

When you hire a disabled person, it is always contractual. They do not enjoy security of tenurebecause they are not employees they are special workers.

EMPLOYMENT OF WOMEN

NOTE: WOMEN BELONG TO VULNERABLE TYPE OF WORKERS. THATS WHY THERE IS ASPECIAL LAW FOR EMPLOYMENT OF WOMEN.

WHAT SPECIFIC PROVISION IN THE CONSTITUTION THAT PROTECTS WOMEN IN THEWORKPLACE?

ANS: THE ROLE OF WOMEN IN NATION BUILDING.

NOTE:MEN & WOMEN ARE EQUAL BEFORE THE LAW. IF WOMENS RIGHTS ARE VIOLATED ITIS AGAINST EQUAL PROTECTION CLAUSE.

WHAT IS THE TREATY AGAINST DISCRIMINATION OF WOMEN?ANS: INTERNATIONAL CONVENTION ON ELIMINATION OF ALL FORMS OFDISCRIMINATION OF WOMEN.

WHAT IS THE OBJECTIVE OF THE MAGNA CARTA FOR WOMEN (RA 9710)?ANS: The Magna Carta of Women ensures the equitable participation andrepresentation of women in government, political parties, the civil service and theprivate sector.WHAT ARE THE FACILITIES FOR WOMEN IN THE WORKPLACE?1.PROVIDE SEATS2.SEPARATE TOILET ROOMS3.DRESSING ROOM4.NURSERY ROOM5.DETERMINE STANDARDS FOR MINIMUM AGENOTE:MATERNITY LEAVE BENEFIT IS THE ONE CONTEMPLATED IN SSS LAW. THE EMPLOYERMUST ADVANCE THE CASH ALLOWANCE OF THE EMPLOYEE SUBJECT TO REIMBURSEMENTFROM SSS.


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IS MATERNITY LEAVE BENEFIT ONLY AVAILABLE TO LAWFULLY MARRIED WOMEN?ANS: NO. ANY PREGNANT WOMAN EMPLOYEE WHETHER MARIED OR NOT IS ELIGIBLE UNDERTHIS PROVISION.

A female member who has paid at least three (3) monthly contributions in the twelve-monthperiod immediately preceding the semester of her childbirth or miscarriage shall be paid a daily

maternity benefit equivalent to one hundred percent (100%) of her average daily salary credit forsixty (60) days or seventy-eight (78) days in case of caesarean delivery, subject to the followingconditions:

(a) That the employee shall have notified her employer of her pregnancy and the probable dateof her childbirth, which notice shall be transmitted to the SSS in accordance with the rules andregulations it may provide;

(b) The full payment shall be advanced by the employer within thirty (30) days from the filing ofthe maternity leave application;

(c) That payment of daily maternity benefits shall be a bar to the recovery of sickness benefitsprovided by this Act for the same period for which daily maternity benefits have been received;

(d) That the maternity benefits provided under this section shall be paid only for the first four (4)deliveries or miscarriages;

(e) That the SSS shall immediately reimburse the employer of one hundredpercent (100%) of the amount of maternity benefits advanced to the employee by the employerupon receipt of satisfactory proof of such payment and legality thereof; and

(f) That if an employee member should give birth or suffer miscarriage without the requiredcontributions having been remitted for her by her employer to the SSS, or without the latterhaving been previously notified by the employer of the time of the pregnancy, the employer shallpay to the SSS damages equivalent to the benefits which said employee member would

otherwise have been entitled to.

WHAT TYPE OF EMPLOYER WOULD NEED TO PROVIDE FAMILY PLANNING SERVICES IN THEWORKPLACE?

ANS: NIGHTCLUBS, KARAOKE, SAUNA BATH PARLORS ETC.

PROHIBITED DISCRIMINATION FOR WOMEN:ANS: Discrimination prohibited.- It shall be unlawful for any employer to discriminate againstany woman employee with respect to terms and conditions of employment solely on account ofher sex.The following are acts of discrimination:

(a) Payment of a lesser compensation, including wage, salary or other form of remuneration and

fringe benefits, to a female employees as against a male employee, for work of equal value; and

(b) Favoring a male employee over a female employee with respect to promotion, trainingopportunities, study and scholarship grants solely on account of their sexes.

NOTE: A HOMOSEXUAL CANNOT CLAIM THE PRIVILEGES UNDER ART 135 (PROHIBITEDDISCRIMINATION FOR WOMEN) BECAUSE THE LAW IS ONLY APPLIED FOR WOMEN. ( KIBER!!!BABAE PO AKO!)


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THERE IS NO LAW IN PROTECTION AGAINST DISCRIMINATION OF ONES GENDER (GAY,LESBIAN, MALE, FEMALE); ONLY DISCRIMINATION BETWEEN SEXES (MALE & FEMALE) (KAILANGAN PAULIT-ULIT? WALA AKONG PAKI! BASTA MAGANDA AKO AT TAO!HEHE)

CAN AN EMPLOYER DISMISS AN EMPLOYEE ON ACCOUNT OF PREGNANCY?ANS: NO. BECAUSE, PREGNANCY IS A MATERNAL FUNCTION OF WOMEN.

(nagmamaganda talaga ang mga mga babaeng to! Grrrrr)

WOMEN WORKING IN NIGHTCLUBS

MARQUEZ: I AM A WOMAN (Sir feel na feel mo talaga? Feel ko rin!), AND YOU ARE AN OWNEROF A BAR. MY COMPENSATION IS BASED ON PURCHASE OF LADYS DRINKS (malamang babaeka nga eh), AM I AN EMPLOYEE?

ANS: NO. MAYBE AN INDEPENDENT CONTRACTOR (kasi special talent mopambobolahehe J)

SO, WHAT WILL MAKE ME AN EMPLOYEE THEN?ANS: YOUR EMPLOYER SHOULD HAVE SUPERVISION & CONTROL OF YOU.

ART. 138. Classification of certain women workers . - Any woman who is permitted orsuffered to work, with or without compensation, in any night club, cocktail lounge, massageclinic, bar or similar establishments under the effective control or supervision of the employer fora substantial period of time as determined by the Secretary of Labor and Employment, shall beconsidered as an employee of such establishment for purposes of labor and social legislation.

BUT, IF I AM A MAN WORKING IN A BAR (MACHO DANCER sarap!), I AM NOT PROTECTEDUNDER THE CLASSIFICATION BECAUSE THE PROTECTION ONLY APPLIES TO WOMEN WORKINGIN NIGHTCLUBS.

VIOLENCE AGAINST WOMEN AND CHILDREN (VAWC) - NURSING WOMEN (hindi nursingstudenthehe) ARE INCLUDED UNDER THE LAW.

TAKE NOTE OF SEC 12 OF BREASTFEEDING ACT:RA 10028 SEC. 12NURSING EMPLOYEES SHALL BE GRANTED NURSING INTERVALS IN ADDITION TO THEREGULAR TIME-OFF FOR MEALS TO BREASTFEED OR EXPRESS MILK. THESE INTERVALS WHICHSHALL INCLUDE THE TIME IT TAKES AN EMPLOYEE TO GET TO AND FROM THE WORKPLACELACTATION STATION SHALL BE COUNTED AS COMPENSABLE HOURS WORKED. THE DOLE MAY

ADJUST THE SAME PROVIDED THAT THE INTERVALS SHALL NOT BE LESS THAN 40 MINSFOR EVERY EIGHT (8) HR WORKING PERIOD.

LEAVE BENEFITS WITH GYNECOLOGICAL DISORDERANS: In the workplace, women employees would be allowed to avail of a specialleave benefit of two (2) months with full pay after undergoing surgery caused by

gynecological disorders, provided that she has rendered at least six (6) months ofcontinuous aggregate employment.NOTE: THIS IS AVAILED ONLY AFTER SURGERY W/O PREJUDICE TO THE ER OF CHOOSINGWHETHER TO GIVE THE BENEFIT BEFORE OR AFTER THE SURGERY.

WHAT ARE THE SALIENT FEATURES ON EMPLOYMENT OF NIGHT WORKERS ?ANS: The review and, if necessary, amendment or repeal of laws that are discriminatoryto women.


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Ensures womens equitable participation and representation in government,political parties, international bodies, civil service, and the private sector. Affords equal opportunities to women in relation to education, employment,livelihood, social protection, and others, and including women in the military. Mandates access to information and services pertaining to womens health.

NIGHT WORKERS:

WHO ARE NIGHT WORKERS?ANS: THOSE WHOSE WORK REQUIRES PERFORMANCE OF A SUBSTANTIAL NUMBER

OF HOURS OF NIGHT WORK.

HEALTH ASSESSMENT FOR NIGHT WORKERS:AT THEIR REQUEST, WORKERS SHALL HAVE THE RIGHT TO UNDERGO ASSESSMENT WITHOUTCHARGE AND TO RECEIVE ADVICE ON HOW TO REDUCE OR AVOID HEALTH PROBLEMS

ASSOCIATED WITH THEIR WORK:- BEFORE TAKING UP AN ASSIGNMENT AS A NIGHT WORKER;- AT REGULAR INTERVALS DURING SUCH ASSIGNMENTS- IF THEY EXPERIENCE HEALTH PROBLEMS DURING SUCH AN ASSIGNMENT WHICH ARE

NOT CAUSED BY FACTORS OTHER THAN THE PERFORMANCE OF NIGHT WORK.

TRANSFER FOR NIGHT WORKERS:NIGHTWORKERS WHO ARE CERTIFIED AS PERMANENTLY UNFIT TO WORK DUE TO HEALTHREASONS SHALL BE TRANSFERRED WHENEVER PRACTICABLE TO A SIMILAR JOB TO WHICHTHEY ARE FIT TO WORK. IF SUCH TRANSFER TO A SIMILAR JOB IS NOT PRACTICABLE, THESEWORKERS SHALL BE GRANTED THE SAME BENEFITS AS OTHER WORKERS WHO ARE UNABLETO WORK OR TO SECURE EMPLOYMENT DURING SUCH PERIOD.

A NIGHT WORKER CERTIFIED AS TEMPORARILY UNFIT FOR NIGHT WORK SHALL BE GIVEN THESAME PROTECTION AGAINST DISMISSAL OR NOTICE OF DISMISSAL AS OTHER WORKERS WHO

ARE PREVENTED FROM WORKING FOR REASONS OF HEALTH.

MANDATORY FACILITIES FOR NIGHT WORKERS: FIRST AID QUARTERS; SLEEPING QUARTERS;TRANSPORTATIONSOCIAL SERVICES FOR NIGHT WORKERS FOOD ALLOWANCE; TRANSPORTATION (SHUTTLESERVICE) ETC.

WHAT IS THE EXCEPTION TO THE COVERAGE NIGHT WORKERS?ANS:THOSE EMPLOYED IN THE AGRICULTURE, STOCK RAISING, FISHING, MARITIME

TRANSPORT, AND INLAND NAVIGATION.

EMPLOYMENT OF CHILDREN

WHAT IS THE MINIMUM EMPLOYABLE AGE FORCHILDREN?ANS: Children below fifteen (15) years of age may be allowed to work under the directresponsibility of their parents or guardians in any non-hazardous undertaking where the work willnot in any way interfere with their schooling. In such cases, the children shall not be consideredas employees of the employers or their parents or guardians.

Any person of either sex, between 15 and 18 years of age, may be employed in any non-hazardous work. No employer shall discriminate against such person in regard to terms andconditions of employment on account of his age.


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For purposes of this Rule, a non-hazardous work or undertaking shall mean any work or activityin which the employee is not exposed to any risk which constitutes an imminent danger to hissafety and health. The Secretary of Labor and Employment shall from time to time publish a listof hazardous work and activities in which persons 18 years of age and below cannot beemployed.

CITE THE HOURS OF WORK ALLOWED IN THE EMPLOYMENT OF CHILDREN?(1) A child below fifteen (15) years of age may be allowed to work for not more than twenty(20) hours a week: provided, that the work shall not be more than four (4) hours at any givenday;

"(2) A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work formore than eight (8) hours a day, and in no case beyond forty (40) hours a week;

"(3) No child below fifteen (15) years of age shall be allowed to work between eight o'clock inthe evening and six o'clock in the morning of the following day and no child fifteen (15) years ofage but below eighteen (18) shall be allowed to work between ten o'clock in the evening and sixo'clock in the morning of the following day."

NATURE OF WORK ALLOWED IN THE EMPLOYMENT OF CHILDREN?ANS: NON-HAZARDOUS WORK.

WHAT ABOUT 18 Y/O, IS IT COVERED WITHIN THE PROHIBITION?ANS: NO. THE RESTRICTION APPLIES ONLY TO THOSE BELOW 18.

EMPLOYMENT OF HOUSEHELPER

WHAT IS A DOMESTIC OR HOUSEHOLD SERVICE?ANS: Service in the employers home which is usually necessary or desirable for the

maintenance and enjoyment thereof and includes ministering to the personal comfortand convenience of the members of the employers household, including services offamily drivers.NOTA:HOUSEHELPER INCLUDES FAMILY DRIVERS BUT NOT COMPANY DRIVERS.

WHO MAY QUALIFY AS A HOUSEHELPER?ANS: ANY PERSON MALE OR FEMALE.

WHAT IS THE MINIMUM EMPLOYABLE AGE OF A HOUSEHELPER?ANS: ATLEAST 15 Y/O.

ARE THEY ALSO ENTITLED TO THE PROHIBITED HRS OF WORK SINCE THEY ARE MINORS?ANS: YES, THE RULES ON HOURS OF WORK FOR MINORS APPLY TO THEM.

WHAT ARE THE THREE DISTINCTIVE FEATURES OF HOUSEHELPER?ANS: Employer is the head of the family Services are performed in and about employers home Services are exclusively rendered for the personal comfort and convenience of the employer

and members of his family

WHERE DO YOU RENDER SERVICES AS A HOUSEHELPER?ANS: SERVICES ARE PERFORMED IN THE EMPLOYERS HOME.


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WHAT IS THE PURPOSE OF THE SERVICES OF A HOUSEHELPER?

ANS: IT IS EXCLUSIVELY RENDERED FOR THE PERSONAL COMFORT & CONVENIENCEOF THE EMPLOYER (THIS IS EXCLUSIVE).

CAN AN EMPLOYER DEFER PAYMENT OF SALARY THROUGH A STIPULATION OR AGREEMENT IF

AN EMPLOYER OFFERS TO SEND THE HOUSEHELPER TO SCHOOL?ANS: NO. IT IS VOID. THE HOUSEHELPER SHOULD BE PAID FOR THE SERVICES

RENDERED BECAUSE THE OFFER WAS INITIATED BY THE EMPLOYER.

COMPENSATION OF HOUSEHELPERS:ANS:(1) Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon, Pasay, andCaloocan cities and municipalities of Makati, San Juan, Mandaluyong, Muntinlupa, Navotas,Malabon, Paraaque, Las Pias, Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro Manilaand in highly urbanized cities;

(2) Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first-classmunicipalities; and

(3) Five hundred fifty pesos (P550.00) a month for those in other municipalities. Provided, Thatthe employers shall review the employment contracts of their househelpers every three (3) yearswith the end in view of improving the terms and conditions thereof. Provided, further, Thatthose househelpers who are receiving at least One thousand pesos (P1,000.00) shall be coveredby the Social Security System (SSS) and be entitled to all the benefits provided thereunder.EXCLUDING LODGING FOODS, & MEDICAL ATTENDANCE W/C SHALL BE PAID BY THEEMPLOYER. REMEMBER: THESE ADDITIONAL BENEFITS CANNOT BE DEDUCTED FROMTHE HOUSEHELPERS WAGES.

WHAT IS THE PERIOD FOR THE INITIALCONTRACT OF HOUSEHELPERS?ANS: SERVICES SHOULD NOT EXCEED FOR 2 YRS. HOWEVER, UPON EXPIRATION OF

THE INITIAL CONTRACT, IT CAN BE RENEWED FOR A PERIOD AT THE DISCRETIONOF BOTH PARTIES.

WHAT IS THE HOURS OF WORK OF A HOUSEHELPER?ANS: IT SHOULD NOT EXCEED 1O HRS A DAY WITH FOUR (4) DAYS PAID LEAVE INONE YEAR. AT ANY DAY A HOUSEHELPER CAN ENJOY THE VACATION LEAVE BECAUSE

THERE IS NO SPECIFIC DAY PROVIDED BY LAW.

ARE HOUSEHELPERS ENTITLED TO SICKLEAVE?ANS. NO. THERE IS NO SICK LEAVE.

DO HOUSEHELPERS HAVE THE RIGHT TO EDUCATION? NO. THEY ONLY HAVE THE RIGHT TOTHE OPPORTUNITY TO ELEMENTARY EDUCATION TO THOSE BELOW 18 Y/O.

If the house helper is under the age of eighteen years, the head of the family shall give anopportunity to the house helper for at least elementary education. The cost of such educationshall be a part of the house helper's compensation, unless there is a stipulation to the contrary.

WHO PAYS FOR THE ELEMENTARY EDUCATION OF A HOUSEHELPER?ANS: THE HOUSEHELPER PAYS BECAUSE IT FORMS PART OF HIS COMPENSATIONUNLESS THERE IS A CONTRARY STIPULATION.


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NOTA: HOUSEHELPERS HAVE THE RIGHT TO ADEQUATE FOODS, NOT JUST FOODS. THEYMUST ALSO BE TREATED IN JUST & HUMANE MANNER WITHOUT PHYSICAL VIOLENCE.

IF A HOUSEHELPER REACHES THE AGE OF 62 AND HE IS EARNING 1OOO A MONTH, IS HISEMPLOYER REQUIRED TO REPORT TO THE SSS FOR COVERAGE?

ANS: NO. HE WILL NOT BE COVERED WITH SSS BECAUSE SSS COVERAGE APPLIES

ONLY TO THOSE BELOW 60 Y/O.

IF A HOUSEHELPER REACHES THE RETIREMENT AGE, IS HE ENTITLED TO RETIREMENTBENEFITS?

ANS: YES. BECAUSE THEY ARE NOT EXCLUDED IN THE LAW.

The Retirement Pay Law shall apply to all employees in the private sector, regardless of theirposition, designation or status, and irrespective of the method by which their wages are paid.They shall include part-time employees, employees of service and other job contractors anddomestic helpers or persons in the [personal service and agricultural establishment or operationsemploying not more than 10 employees or workers and employees of the National Governmentand its political subdivisions including government-owned and controlled corporations, if they arecovered by the Civil Service Law and regulations.

IF A HOUSEHELPER ENTERS INTO A CONTRACT OF EMPLOYMENT, CAN AN EMPLOYER JUSTTERMINATE IT?

ANS: NO. ONLY FOR A VALID AND JUST CAUSE.

WHAT IF THE CONTRACT HAS A PERIOD LIKE FOR TWO (2) YRS?ANS: THE PARTIES MUST FOLLOW THE CONTRACT.

WHAT IF THE CONTRACT HAS NO PERIOD, CAN AN EMPLOYER JUST TERMINATE THECONTRACT?

ANS: THE EMPLOYER MUST NOTIFY 5 DAYS PRIOR TO THE TERMINATION OF THE CONTRACT.OTHERWISE, HE WILL BE LIABLE FOR UNJUST DISMISSAL.

WHAT ARE THE REMEDIES OF AN EMPLOYEE UNJUSTLY DISMISSED?ANS: DAMAGES PLUS UNPAID SALARIES.

NOTE: IN THE CASE OF ULRA VILLA FOODHOUSEChapter III, Title III, Book III, however, is silent on the grant of overtime pay, holiday pay,premium pay and service incentive leave to those engaged in the domestic or household service.Moreover, the specific provisions mandating these benefits are found in Book III, Title I of theLabor Code, and Article 82, which defines the scope of the application of these provisions,expressly excludes domestic helpers from its coverage:

Art. 82. Coverage. - The provision of this title shall apply to employees in all establishments andundertakings whether for profit or not, but not to government employees, managerial employees,field personnel, members of the family of the employer who are dependent on him for support,domestic helpers, persons in the personal service of another, and workers who are paid by

results as determined by the Secretary of Labor in appropriate regulations.

IN CASE OF DEATH OF THE HOUSHELPER, WHO BEARS THE EXPENSES FOR THE FUNERAL?ANS: THE EMPLOYER BEARS THE EXPENSES OF THE FUNERAL IF THE HOUSEHELPERHAS NO RELATIVES WITHIN THE PLACE. BUT, IF THERE ARE RELATIVES, THEY WILLBEAR THE EXPENSES OF FUNERAL.

IF THE HOUSEHELPER RESIGNS, DOES SHE HAVE THE RIGHT TO CERTIFICATE OFEMPLOYMENT?ANS: YES.


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HOMEWORKERS:

ARE HOUSEHELPERS THE SAME AS HOMEWORKERS?ANS: NO. HOUSEHELPER WORKS AT ERS HOME WHILE HOMEWORKERS WORK AT

EES HOME; HOMEWORKER IS ENGAGED IN INDUSTRIAL WORK, THE MATERIALSARE GIVEN BY THE ER WHILE HOUSEHELPER RENDERS SERVICES PERSONALLY IN

THE HOUSE OF THE ER.

NOTA: IF A PERSON IS ENGAGED IN NEEDLE WORK THEY ARE EXEMPTED FROM THEMINIMUM WAGE.

EMPLOYMENT OF ALIENS:

DISTINGUISH A NON RESIDENT ALIEN FROM RESIDENT ALIEN?ANS:

***DOLE ISSUES ALIEN EMPLOYMENT PERMIT:ART. 40. Employment permit of non-resident aliens.- Any alien seeking admission to thePhilippines for employment purposes and any domestic or foreign employer who desires toengage an alien for employment in the Philippines shall obtain an employment permit from theDepartment of Labor.

The employment permit may be issued to a non-resident alien or to the applicant employer aftera determination of the non-availability of a person in the Philippines who is competent, able andwilling 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 beissued upon recommendation of the government agency charged with the supervision of saidregistered enterprise.

NOTA:RESIDENT ALIENS ARE ALLOWED BY LAW TO STAY OR RESIDE INDEFINITELY IN THEPHILS.

RULE:ALL FOREIGN NATIONALS WHO INTEND TO ENGAGE IN GAINFUL EMPLOYMENT IN THEPHILS SHALL APPLY FPOR ALIEN EMPLOYMENT PERMIT.

EXCLUSIONS FOR ALIEN EMPLOYMENAT PERMIT: DOG - EPTR1.MEMBERS OF THE DIPLOMATIC SERVICE & FOREIGN GOVERNMENT OFFICIALS

ACCREDITED BY AND WITH RECIPROCITY WITH THE PHILS.2.OFFICERS & STAFF OF INTERNATIONAL ORGANIZATION OF WHICH THE PHILIPPINE

GOVERNMENT IS A MEMBER INCLUDING THEIR LEGITIMATE SPOUSES DESIRING TOWORK IN THE PHILS.

3.FOREIGN NATIONALS ELECTED AS MEMBERS OF THE GOVERNING BOARD, WHO DO NOTOCCUPY ANY OTHER POSITION, BUT HAVE ONLY VOTING RIGHTS IN THECORPORATION.

4.ALL FOREIGN NATIONAL GRANTEDEXEMPTIONBY LAW.5.OWNERS & REPRESENTATIVES OF FOREIGN PRINCIPALS WHOSE COMPANIES ARE

ACCREDITED BY THE POEA WHO COME FOR A LIMITED PERIOD SOLELY FORINTERVIEWING FILIPINO APPLICANTS FOR EMPLOYMENT ABROAD.

6.FOREIGN NATIONALS WHO COME TO THE PHILIPPINES TO TEACHOR CONDUCT RESEARCHSTUDIES IN UNIVERSITIES, EXCHANGE PROFESSORS UNDER AGREEMENT WITH


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SCHOOLS IN THE PHILS, PROVIDED THE EXEMPTION IS ON RECIPROCAL BASIS.7.RESIDENTFOREIGN NATIONALS.DURATION OF AEP: 1 YEAR, UNLESS THE CONTRACT PROVIDES OTHERWISE, BUT IN NOCASE SHALL IT EXCEED 5 YRS. THIS IS RENEWABLE.

NOTE: APPLICATIONS FOR AEP SHALL BE FILED WITH THE REGIONAL OFFICEHAVING JURISDICTION ON THE INTENDED PLACE OF WORK.

PEZAFOREIGN NATLS GRANTED EXEMPTION BY LAW.GENERALLY, PHILS DOES NOT ENCOURAGE EMPLOYMENT OF ALIENS D/T COMPETITION INSOME SITUATION.

OPPOSITION MAY BE FILED W/ DOLE FOR THE APPLICATION OF A FOREIGN NATIONAL.(EMPLOYMENT OF NONRESIDENT ALIENS)

NOTA: NONRESIDENT ALIENS ARE ALLOWED TO WORK IF THEY ARE QUALIFIED & NOFILIPINO WORKER IS BETTER QUALIFIED. THE LABOR SECRETARY IS EMPOWERED TODETERMINE AS TO THE AVAILABILITY OF THE SERVICES OF A PERSON IN THE PHILIPPINESWHO IS COMPETENT, ABLE AND WILLING AT THE TIME OF THE APPLICATION TO PERFORM

THE SERVICES FOR WHICH AN ALIEN IS DESIRED. THE LABOR DEPARTMENT IS THE AGENCYVESTED WITH JURISDICTION TO DETERMINE THE QUESTION OF AVAILABILITY OF WORKERS.

WORKING SCHOLARS:

WHO ARE WORKING SCHOLARS?ANS: ARE STUDENTS WHO WORK FOR THE SCHOOL IN EXCHANGE FOR THEPRIVILEGE TO STUDY PREE este FREE OF CHARGE PROVIDED THEY ARE GIVEN THEREASONABLE OPPORTUNITY TO FINISH THE COURSE.(isipin mo lang si Lorie J)

Q: ARE YOU ALSO ENTITLED TO COMPENSATION AS A WORKING SCHOLAR?

A: NO. IT IS ONLY THE PRIVILEGE TO STUDY THAT I AM ENTITLED TO.

Q: IF YOU WORK FOR THE SCHOOL FROM 8AM - 8PM W/ THE OPPORTUNITY TO FINISH YOURCOURSE IN NURSING AT 5 UNITS PER SEM, ARE YOU A WORKING SCHOLAR?

A: NO. I AM A REGULAR WORKER.I CAN SUE MY SCHOOL & CLAIM BENEFITS THAT I AMENTITLED TO.

SPECIAL PROGRAM FOR EMPLOYMENTOF STUDENTS:***WHAT TYPE OF ESTABLISHMENTS ARE QUALIFIED TO HIRE UNDER SPECIALPROGRAM FOREMPLOYMENT OF STUDENTS (SPES)?

ANS: THE ESTABLISHMENT MUST BE EMPLOYING 10 OR MORE WORKERS.

***WHAT IS THE AGE QUALIFICATION OF A STUDENT TO BE HIRED UNDER THE LAW?

ANS: THE STUDENT MUST NOT BE BELOW 15Y/O NOR MORE THAN 25Y/O.

20-52 DAYS OF WORK ONLY. SUNTZU P 163

Q:WHO AMONG THE WORKING STUDENTS MAY BE HIRED DURING SUMMER OR XMASVACATION ONLY?A: SECONDARY STUDENTS. DURING CHRISTMAS THEY ARE ONLY ALLOWED TO WORK FOR 10-15 DAYS.HOW ABOUT THE TERTIARY SUDENTS?


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A:THEY MAY BE HIRED ANYTIME.

NOTA: THEIR period of employment shall be from twenty (20) to fifty-two (52) working daysonly, except that during Christmas vacation, employment shall be from ten (10) to fifteen (15)days which may be counted as part of the students' probationary period should they apply in thesame company or agency after graduation: Provided, That students employed in activities related

to their course may earn equivalent academic credits as may be determined by the appropriategovernment agencies.

The LAW:Any provision of law to the contrary notwithstanding, any person or entity employing at least ten(10) persons may employ poor but deserving students fifteen (15) years of age but not morethan twenty-five (25) years old, paying them a salary or wage not lower than the minimum wagefor private employers and the applicable hiring rate for the national and local governmentagencies: Provided, that student enrolled in the secondary level shall only be employed duringsummer and/or christmas vacations, while those enrolled in the tertiary, vocational or technicaleducation may be employed at any time of the year: Provided, further, That their period ofemployment shall be from twenty (20) to fifty-two (52) working days only, except that duringChristmas vacation, employment shall be from ten (10) to fifteen (15) days which may be

counted as part of the students' probationary period should they apply in the same company oragency after graduation: Provided, finally, That students employed in activities related to theircourse may earn equivalent academic credits as may be determined by the appropriategovernment agencies.

"For purposes of this Act, poor but deserving students refer to those whose parents' combinedincome, together with their own, if any, does not exceed the annual regional poverty thresholdlevel for a family of six (6) for the preceding year as may be determined by the NationalEconomic and Development Authority (NEDA). Employment facilitation services for applicants tothe 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 employmentcontracts."

Section 2.Section 2 of the same Act is hereby amended to read as follows:

"SEC. 2. Sixty per centum (60%) of the said salary or wage shall be paid by the employers incash and forty per centum (40%) by the government in the form of a voucher which shall beapplicable in the payment for the students' tuition fees and books in any educational institutionfor 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 theeducation vouchers shall be paid by the government to the educational institutions concernedwithin thirty (30) days from its presentation to the officer or agency designated by the Secretaryof Finance.

"The vouchers shall not be transferable except when the payees thereof dies or for a justifiablecause stops in his duties, in which case it can be transferred to his brothers or sisters. If there benone, the amount thereof shall be paid his heirs or to the payee himself, as the case may be."

WHAT IS DUAL TRAINING SYSTEM?A: Refers to a delivery system of quality technical and vocational education which requirestraining to be carried out alternately in two venues: in-school and in the production plant. In-school training provides the trainee the theoretical foundation, basic training, guidance and


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human formation, while in-plant training develops his skills and proficiency in actual workconditions as it continues to inculcate personal discipline and work values;

EMPLOYMENT OF ACADEMIC AND NON-ACADEMIC PERSONNEL IN PRIVATEEDUCATIONAL INSTITUTION

Academic personnel includes all school personnel who are formally engaged in actual teachingservice or research assignments, either on full-time or part-time basis, as well as those whopossess certain prescribed academic functions, such as registrars, librarians, guidance councilors,researchers and other similar persons (Sec. 4, par.c). [note: manual of regulations for privateeducational institution applies here and not labor code]

Non-academic personnel means school personnel usually engaged in ADMINISTRATIVEfunctions, who are not covered under the definition of academic personnel. They may includeschool officials. [Note: labor code applies here]

In Private Educational Institutions (Manual of Regulations for Private School)

* as simply classified by Marquez

a. Academic Personnel

a.1. Academic teachinga.2. Academic non-teaching (ex. The librarian)

b. Non-Academic Personnel those staff who perform administrative functions but are notinvolved in academic work

* Their employment is NOT covered by the MRPS or by the TVET Manual but by the Labor Code.

Section 45 of the 1992 Manual of Regulations for Private Schools provides that full-

time academic personnel are those meeting all the following requirements:

a. Who possess at least the minimum academic qualifications prescribed by the Departmentunder this Manual for all academic personnel;

b. Who are paid monthly or hourly, based on the regular teaching loads as provided for in thepolicies, rules and standards of the Department and the school;

c. Whose total working day of not more than eight hours a day is devoted to the school;

d. Who have no other remunerative occupation elsewhere requiring regular hours of work thatwill conflict with the working hours in the school; and

e. Who are not teaching full-time in any other educational institution.

All teaching personnel who do not meet the foregoing qualifications are considered part-time.

ACADEMIC PERSONNELMANUAL GOVERNSNON ACADEMIC PERSONNELLABOR CODE GOVERNS

HIRING OF SENIOR CITIZENSRA 994


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WHAT IS THE ROLE OF DOLE IN HIRING SENIOR CITIZENS?

***MEDICAL, DENTAL & OCCUPATIONAL SAFETY OF EMPLOYEES

WHAT ARE THE REQUIREMENTS TO EMPLOYERS FOR THE MEDICAL, DENTAL & OCCUPATIONALSAFETY OF ITS EMPLOYEES?

ANS:No. of EmployeesNature of UndertakingRequirement1.) From 10 to 50

- a graduate first-aider who may be one of the workers in the workplace and who has immediateaccess to the first-aid medicines in the workplace (Rule 1, Sec. 4(a), Bk IV, IRR)

2.) More than 50 but not more than 200*Hazardous

*Non-hazardous- Full-time registered nurse

- Graduate first-aider, if no registered nurse available3.) More than 200 but not more than 300*Hazardous & Non-hazardousa. Full-time registered nurse

b. Part-time physician and part-time dentist

*Hazardous workplaceshoud stay in the premises for at least two (2) hours

*Non-hazardous workplacephysician and dentist may be engaged on retained basis subject toregulations by the SOLE (Art. 157, LC)

*Additional requirements under the Implementing Rules for Workplaces with more than oneworkshift a day:

- The physician and dentist shall be at the workplace during the workshift which has the biggestnumber of workers and shall be subject to call at anytime during the other workshifts to attend toemergency cases

- A full-time first-aider must be provided for each workshift, (Sec. 4 (d) & (e), Bk IV, Rule 1, IRR)

c. An emergency clinic4.) More than 300*Hazardous and Non-hazardousa. Full-time physician and full-time dentist

*Hazardous workplace full-time physician and full-time dentist should stay in the premises forat least 8 hours

*Non-hazardous workplacephysician and dentist may be engaged on retained basis subject to


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regulations by the SOLE (Art. 157, LC)

- employer may engage the services of a part-time physician and a part-time dentist who shallhave the same responsibilities as those provided under number 3(b) above. (Sec. 4 (d), Rule I,Bk IV, IRR)

* Additional requirements under the Implementing Rules for Workplaces with moe than oneworkshift a day:

- The physician and dentist shall be at the workplace during the workshift which has the biggestnumber of workers and shall be subject to cal at anytime during the other workshifts to attend toemergency cases.

- A full-time first-aider must be provided for each workshift. (Sec. 4 (d) & (e), Bk IV, Rule I, IRR)

b. Full-time registered nurse

c. Dental clinic

d. Infirmary or emergency hospital with one bed capacity for every 100 employees. Exceptions(IRR, Sec. 5, Bk IV, Rule 1):

*In urban area where there is a hospital or dental clinic which is not more than 5 km. awayfrom the workplace

*In rural areawhere a hospital or dental clinic can be reached by motor vehicle in 25 mins.

In both cases, the employer should have readily available facilities for transporting a worker tothe hospital or clinic in case of emergency. Provided further, that the employer shall enter into awritten contract with the hospital or dental clinic for the use thereof in the treatment of workersin case of emergency.

WHAT ARE THE EXCEPTIONS:*In urban area where there is a hospital or dental clinic which is not more than 5 km. awayfrom the workplace

*In rural areawhere a hospital or dental clinic can be reached by motor vehicle in 25 mins.

In both cases, the employer should have readily available facilities for transporting a worker tothe hospital or clinic in case of emergency. Provided further, that the employer shall enter into awritten contract with the hospital or dental clinic for the use thereof in the treatment of workersin case of emergency.

IS THE ER MANDATED TO HIRE & EMPLOY THESE MEDICAL PERSONNEL?

ANS: NO. THE EMPLOYER JUST NEEDS TO FURNISH THEIR SERVICES.Case: As correctly observed by the petitioner, while it is true that the provision requiresemployers to engage the services of medical practitioners in certain establishments depending onthe number of their employees, nothing is there in the law which says that medical practitionersso engaged be actually hired as employees, adding that the law, as written, only requires theemployer "to retain", not employ, a part-time physician who needed to stay in the premises ofthe non-hazardous workplace for two (2) hours.-Phil Global VS NLRC

ART. 161. ASSISTANCE OF EMPLOYER


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It shall be the duty of any employer to provide all the necessary assistance to ensure theadequate and immediatemedical and dental attendance and treatment to an injured or sickemployee in case of emergency.HOW DO YOU APPLY THIS RULE?Petitioner argues that her cause of action is not predicated on a quasi delict or tort, but on the

failure of private respondents -- as employers of her husband (Captain Tolosa) -- to provide himwith timely, adequate and competent medical services under Article 161 of the Labor Code:"ART 161. Assistance of employer. -- It shall be the duty of any employer to provide all thenecessary assistance to ensure the adequate and immediate medical and dental attendance andtreatment to an injured or sick employee in case of emergency."Likewise, she contends that Article 217 (a) (4)7 of the Labor Code vests labor arbiters and theNLRC with jurisdiction to award all kinds of damages in cases arising from employer-employeerelations.Petitioner also alleges that the "reasonable causal connection" rule should be applied in her favor.Citing San Miguel Corporation v. Etcuban,8 she insists that a reasonable causal connectionbetween the claim asserted and the employer-employee relation confers jurisdiction upon labortribunals. She adds that she has satisfied the required conditions: 1) the dispute arose from anemployer-employee relation, considering that the claim was for damages based on the failure of

private respondents to comply with their obligation under Article 161 of the Labor Code; and 2)the dispute can be resolved by reference to the Labor Code, because the material issue iswhether private respondents complied with their legal obligation to provide timely, adequate andcompetent medical services to guarantee Captain Tolosa's occupational safety.9We disagree. We affirm the CA's ruling that the NLRC and the labor arbiter had no jurisdictionover petitioner's claim for damages, because that ruling was based on a quasi delict or tort per

Article 2176 of the Civil Code.10Time and time again, we have held that the allegations in the complaint determine the nature ofthe action and, consequently, the jurisdiction of the courts.11 After carefully examining thecomplaint/position paper of petitioner, we are convinced that the allegations therein are in thenature of an action based on a quasi delict or tort. It is evident that she sued Pedro Garate andMario Asis for gross negligence.

Petitioner's complaint/position paper refers to and extensively discusses the negligent acts ofshipmates Garate and Asis, who had no employer-employee relation with Captain Tolosa.Specifically, the paper alleges the following tortious acts:"x x x [R]espondent Asis was the medical officer of the Vessel, who failed to regularly monitorCapt. Tolosa's condition, and who needed the USCG to prod him to take the latter's vital signs. Infact, he failed to keep a medical record, like a patient's card or folder, of Capt. Tolosa's illness."12"Respondents, however, failed Capt. Tolosa because Garate never initiated actions to save him. xx x In fact, Garate rarely checked personally on Capt. Tolosa's condition, to wit:"13"x x x Noticeably, the History (Annex "D") fails to mention any instance when Garate consultedthe other officers, much less Capt. Tolosa, regarding the possibility of deviation. To save Capt.Tolosa's life was surely a just cause for the change in course, which the other officers would haveconcurred in had they been consulted by respondent Garatewhich he grossly neglected to do."Garate's poor judgement, since he was the officer effectively in command of the vessel,

prevented him from undertaking these emergency measures, the neglect of which resulted inCapt. Tolosa's untimely demise."14The labor arbiter himself classified petitioner's case as "a complaint for damages, blacklisting andwatchlisting (pending inquiry) for gross negligence resulting in the death of complainant'shusband, Capt. Virgilio Tolosa."15We stress that the case does not involve the adjudication of a labor dispute, but the recovery ofdamages based on a quasi delict. The jurisdiction of labor tribunals is limited to disputes arisingfrom employer-employee relations, as we ruled in Georg Grotjahn GMBH & Co. v. Isnani:16"Not every dispute between an employer and employee involves matters that only labor arbiters


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and the NLRC can resolve in the exercise of their adjudicatory or quasi-judicial powers. Thejurisdiction of labor arbiters and the NLRC under Article 217 of the Labor Code is limited todisputes arising from an employer-employee relationship which can only be resolved by referenceto the Labor Code, other labor statutes, or their collective bargaining agreement."17The pivotal question is whether the Labor Code has any relevance to the relief sought bypetitioner. From her paper, it is evident that the primary reliefs she seeks are as follows: (a) loss

of earning capacity denominated therein as "actual damages" or "lost income" and (b)blacklisting. The loss she claims does not refer to the actual earnings of the deceased, but to hisearning capacity based on a life expectancy of 65 years. This amount is recoverable if the actionis based on a quasi delict as provided for in Article 2206 of the Civil Code,18 but not in the LaborCode.While it is true that labor arbiters and the NLRC have jurisdiction to award not only reliefsprovided by labor laws, but also damages governed by the Civil Code,19 these reliefs must still hebased on an action that has a reasonable causal connection with the Labor Code, other laborstatutes, or collective bargaining agreements.20The central issue is determined essentially from the relief sought in the complaint. In San MiguelCorporation v. NLRC,21 this Court held:"It is the character of the principal relief sought that appears essential in this connection. Wheresuch principal relief is to be granted under labor legislation or a collective bargaining agreement,

the case should fall within the jurisdiction of the Labor Arbiter and the NLRC, even though a claimfor damages might be asserted as an incident to such claim."22The labor arbiter found private respondents to be grossly negligent. He ruled that Captain Tolosa,who died at age 58, could expect to live up to 65 years and to have an earning capacity ofUS$176,400.It must be noted that a worker's loss of earning capacity and blacklisting are not to be equatedwith wages, overtime compensation or separation pay, and other labor benefits that are generallycognized in labor disputes. The loss of earning capacity is a relief or claim resulting from a quasidelict or a similar cause within the realm of civil law."Claims for damages under paragraph 4 of Article 217 must have a reasonable causal connectionwith any of the claims provided for in the article in order to be cognizable by the labor arbiter.Only if there is such a connection with the other claims can the claim for damages be considered

as arising from employer-employee relations."23 In the present case, petitioner's claim fordamages is not related to any other claim under Article 217, other labor statutes, or collectivebargaining agreements.Petitioner cannot anchor her claim for damages to Article 161 of the Labor Code, which does notgrant or specify a claim or relief. This provision is only a safety and health standard under BookIV of the same Code. The enforcement of this labor standard rests with the labor secretary.24Thus, claims for an employer's violation thereof are beyond the jurisdiction of the labor arbiter. Inother words, petitioner cannot enforce the labor standard provided for in Article 161 by suing fordamages before the labor arbiter.It is not the NLRC but the regular courts that have jurisdiction over actions for damages, in whichthe employer-employee relation is merely incidental, and in which the cause of action proceedsfrom a different source of obligation such as a tort.25 Since petitioner's claim for damages ispredicated on a quasi delict or tort that has no reasonable causal connection with any of the

claims provided for in Article 217, other labor statutes, or collective bargaining agreements,jurisdiction over the action lies with the regular courts26 -- not with the NLRC or the laborarbiters.

IF DURING AN EMERGENCY AN EMPLOYEE WAS NOT GIVEN ADEQUATE & IMMEDIATEASSISTANCE, CAN HE CLAIM AN ACTION UNDER ART 161? ***ANS: THERE WILL BE CIVIL LIABILITY UNDER TORTS & DAMAGES. IF UNDER LC THEN THESTATE INSURANCE FUND SHALL BE LIABLE.


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WHAT IS A STATE INSURANCE FUND?LIABILITY OF STATE INSURANCE FUND

ART. 172 (LC). LIMITATIONS OF LIABILITY

The State Insurance Fund shall be liable for compensation to the employee or his dependents,

EXCEPT when the disability or death was occasioned by the employees:

a. Intoxicationb. Willful intention to injure or kill himself or another,c. Notorious negligence, or otherwise provided under this Title.

-Intoxication or Drunkennes - under this

questions during orals(final coverage)

Documents