the essentials of hr and labor law. july 24, 2014. philippines
TRANSCRIPT
Dionarto Q. Noblejas -versus-
Italian Maritime Academy Phils., Inc., Capt. Nicolo S. Terrei, Raceli B.
Fernandez, and Ma. Teresa R. Mendoza G.R. No. 207888
June 9, 2014 Supreme Court of the Philippines
Philippine Spring Water Resources Inc., and Danilo Y. Lua
-versus- Court of Appeals and
Juvenstein B. Mahilum G.R. No. 205278 June 11, 2014
Supreme Court of the Philippines
Takata (Philippines) Corporation -versus-
Bureau of Labor Relations and Samahang Lakas Manggagawa ng Takata
(SALAMAT) G.R. No. 196276
June 4, 2014 Supreme Court of the Philippines
Disclaimers
• No lawyer-client relationship.
• Consult your own legal counsel.
• Legal opinions differ.
• Respect the sub judice rule.
• Avoid conflict of interest.
LABOR LAW MADE EASY 1. Learn something new DAILY
about Labor Law. 2. Links to RESOURCES, SITES,
and EVENTS. 3. Quick consultation for FREE
(thru private message).
Law on Ownership
• “The owner has the right to enjoy and dispose of a thing, without other limitations other than those established by law.”
• (Art. 428, Civil Code).
Law on Contracts “The contracting parties may
establish such stipulations, clauses, terms and conditions as may be deemed convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.”
(Art. 1306, Civil Code)
Employer Power! “The State recognizes the indispensable role
of the private sector, encourages private enterprises, and provides incentives to needed investments.”
(Sec. 20, Art. II, Constitution)
“The State…x x x… recognizing the right of enterprises (1) to reasonable returns on investments, and (2) to expansion and growth.” (Sec. 3, Art. XIII, Constitution)
Management Prerogative 1. Right to hire;
2. Right to fire;
3. Right to fix compensation & benefits; and
4. Right to control.
Job Analysis
Job Description
Advertise Vacancies
Receive Job Applications
Job Interview
Background Checks Testing
Short-Listing
Job Offer & Acceptance
Happy Ending
• Retirement • Resignation
Tragic Ending
• Termination • Labor case • Other law suits
EMPLOYMENT
Labor Law 1. Full protection 2. Living wage 3. Humane conditions of work 4. Security of tenure 5. Participation in policy and decision-making 6. Just share in the fruits of production
1. Self-organization and collective bargaining; 2. Freedom of expression; and 3. Strike and other peaceful concerted activities
Monetary Benefits Minimum Wage Holiday Pay
Premium Pay Overtime Pay
Night Shift Differential Service Charges
Service Incentive Leave Maternity Leave
Paternity Leave Solo Parents Leave
VAWC Leave Special Leave for Women
13th Month Pay Separation Pay
Retirement Pay Compensation Benefit* (ECC)
PhilHEALTH Benefit* Social Security Benefit*
Pag-IBIG Benefit*
Control Test • The power to determine the end
results and the means of doing the work is CONTROL.
• Only an employer has the power of control over his employees.
• The power of control need not be actually exercised.
Non-employment Options Independent Contractors Job Contractors
Consultants Freelancers
Agents Industrial Partners
Corporate Officers Cooperative Members
Volunteers Interns
Job Analysis
Job Description
Advertise Vacancies
Receive Job Applications
Job Interview
Background Checks Testing
Short-Listing
Job Offer & Acceptance
Types of Employment Private Sector Government
Regular (Nature) Casual
Regular (Term) Non-Regular
Rank-and-file Manager & Supervisor
Time-based Results-based
Private Sector Government
Labor Code and other labor laws
Civil Service Law
Department of Labor and Employment
Civil Service Commission
CBA + Strike CNA + No Strike
Labor Standards Exempted from Labor Standards
Regular Casual
Work is “Usually Necessary or Desirable in the Usual Business or Trade of the Employer”
Work is NOT “Usually Necessary or Desirable in the Usual Business or Trade of the Employer”
Security of Tenure No Security of Tenure
What’s Just Cause? 1. Serious misconduct; 2. Willful disobedience (or insubordination); 3. Gross and habitual neglect of duties; 4. Fraud; 5. Willful breach of trust; and 6. Crime against person of the employer or
his immediate family or representatives.
What’s other Just Cause? 1. Loss of trust; 2. Gross negligence coupled with a grave
consequence; 3. Incompetence without improvement; 4. Habitual commission of minor offenses;
and 5. Unfit for continued employment based on
the “Totality of Infraction” doctrine.
What’s Authorized Cause? 1. Installation of labor-saving devices; 2. Redundancy; 3. Retrenchment to prevent losses; 4. Closing or cessation of establishment or
undertaking; 5. Disease prejudicial to health; and 6. Compulsory retirement.
Regular Non-Regular Work is “Usually Necessary or Desirable in the Usual Business or Trade of the Employer”
Same
Security of Tenure Same
Tenure is until the age of compulsory retirement
Tenure is until completion of the project, ending of the season, expiration of the fixed-term or contract, or cessation of the emergency or temporary contingency
Non-Regular Security of Tenure (?)
Project Yes, but tenure expires upon completion of the project.
Seasonal Yes, but tenure expires upon the ending of the season.
Contractual or Fixed-term
Yes, but tenure expires upon the end of contract.
Temporary or Emergency
Yes, but tenure expires upon the cessation of the emergency or contingency.
Regular Probationary Work is “Usually Necessary or Desirable in the Usual Business or Trade of the Employer”
Same
Security of Tenure Same
No Probationary Period Probationary Period of 6 months or less
Regular from Day 1 Regularized upon qualifying, or if allowed to work beyond 6 months (whichever comes earlier)
Labor Law 1. Full protection 2. Living wage 3. Humane conditions of work 4. Security of tenure 5. Participation in policy and decision-making 6. Just share in the fruits of production
1. Self-organization and collective bargaining; 2. Freedom of expression; and 3. Strike and other peaceful concerted activities
Labor-Management Cooperation
• Workers’ right • Participate • Policy & decision making processes • Rights, benefits and welfare • According to law
Unions and Certification Elections
• Workers’ right • Self-organization • Peaceful Concerted Activities • Strike • According to law
Takata (Philippines) Corporation -versus-
Bureau of Labor Relations and Samahang Lakas Manggagawa ng Takata
(SALAMAT) G.R. No. 196276
June 4, 2014 Supreme Court of the Philippines
Unfair Labor Practice • Violation of workers’ right • Self-organization & CBA • Committed by employer or by union • Defined in Labor Code • Criminal, Civil or Administrative
Collective Bargaining Agreement
• Negotiated contract • Exclusive bargaining agent and • Employer • Terms and conditions of employment • Grievance and Arbitration provisions
Level or Rank
• Corporate officer • Manager • Managerial staff • Supervisor • Rank-and-file • Confidential
Other Types of Employee • Field personnel • Personal assistant • Domestic worker • Home worker • Working children • Alien
Other Work Arrangements • Apprentice and learner • Intern and trainee • Self-employed worker or freelancer • Virtual assistant • Partner • Agent • Consultant and professional
Illegal Discrimination • Women and pregnant women • Marriage and married women • Handicapped workers • Single parents or solo parents • HIV/AIDS positive workers
Other Hiring Practices • Sexual harassment in the workplace • Yellow dog contract • Drug-testing • Non-competition agreement • Non-disclosure agreement • Non-solicitation agreement
How to D.O.C.U.M.E.N.T. © 2013
D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand LR. M aster HR. E mbrace best practices. N egotiate, negotiate, negotiate!!! T ake advice only from experts.
Documentation X 3
• Pre-Employment Documentation.
• Employment Documentation.
• Pre-Termination & Post Employment Documentation.
Model Employment Contract
• Written, dated, and signed • Pre-employment & probation clauses • Regular or non-regular status • Obedience to company policies • Starting wages & specific benefits • Reference to job offer, handbook, etc.
Model Employee Handbook
• Written, dated, and signed receipt • Code of discipline • Code of ethics & performance criteria • Resignation & clearance process • Address changes & other policies • Benefits common to all employees
Model 201 File
• Employment contract • Job description and job offer sheet • Pre-employment documentation • Job application and bio-data sheet • Acknowledgment receipts • Certifications and test results
How to D.O.C.U.M.E.N.T. © 2013
D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand LR. M aster HR. E mbrace best practices. N egotiate, negotiate, negotiate!!! T ake advice only from experts.
Open-Mindedness
• Be tolerant with your employees.
• Be receptive to new ideas and possibilities.
• Be accepting of the outcome.
Clarity
• Clarity in written communication.
• Clarity in oral communication and action.
• Clarity in purpose and objective.
Understand ER/LR • Understand that:
1. ER/LR is a “Game”.
2. the “Rules of the Game”.
3. the “Goals of the Game”.
Rule of Law
Constitution Laws (including Labor Laws)
Rules & Regulations
Jurisprudence Public Policies and Principles
of Equity
Contracts
Company Policies
How to D.O.C.U.M.E.N.T. © 2013
D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand LR. M aster HR. E mbrace best practices. N egotiate, negotiate, negotiate!!! T ake advice only from experts.
Embrace Best Practices
• Good Practices.
• Better Practices.
• Best Practices: PROGRESSIVE
DISCIPLINE
Negotiate X 3
• Negotiate before a labor dispute.
• Negotiate during a labor dispute.
• Negotiate after a labor dispute.
Take advice only from experts • Licensed or seasoned experts.
• Local labor law experts.
• Practical and trust-worthy experts.
How to D.O.C.U.M.E.N.T. © 2013
D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand LR. M aster HR. E mbrace best practices: Progressive Discipline N egotiate, negotiate, negotiate!!! T ake advice only from experts.
Ethical Best Practices • Rotary Code of Conduct:
– “Be fair in all dealings with others and treat them with the respect due to them as fellow human being.”
• Human Relations, Civil Code: – “Article 19. Every person must, in the exercise
of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.”
Good Faith Test 1. Do no harm.
2. Make things better.
3. Respect others.
4. Be fair.
5. Be compassionate.