labor 2014 - preweek by alcantara

8/16/2019 Labor 2014 - Preweek by Alcantara

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Labor Law Pre-Week Lecture Areas 2014 – Prof. Samson Alcantara

Section 3, Article III, 1987 Constitution

State Policy on full protection of labor

Preferential use of voluntary modes of settling labor disputes.

Note that compulsory arbitration of disputes is still done. Example, when the President orSecretary of Labor assumes jurisdiction over a labor dispute in an industry vital to national

interest, the dispute may be referred for compulsory arbitration to the LA.

Principle of shared responsibility between workers and employers, to actively participate in the

settling of disputes.

Right to profits by enterprises reasonable return of capital and for purposes of expansion and

growth)

Principle of social justice for the employer : No work, no pay.

Exception to said principle:

1. Payment of benefits as provided for in the CBA

2. Dismissal was without just or authorized cause, reinstatement with backwages shall be

awarded

3. Those benefits provided by law

Characteristics of Employer-Employee Relations

1. Master-servant relationship

2. Control test – control of means and methods of accomplishing the work

3. In-personam nature of employment contract – does not bind 3rd parties

4. No requirement of compulsory rendering service as it amounts to involuntary servitude.

Exemption to in-personam nature of employment:Selling the shares of the company does not sever the employment of the employees with the

company, as it was only the majority of the shares of the company goes to the buyer of the

shares. The assets of the company still belong to the company.

Look out for questions involving employee-employer relations that will involve 3 parties: Job

contractor, principal and the employees. Determine who exercises control.

Do labor laws apply to those agreements already existing? Is there retroactive effect?

Yes, labor laws are applicable to agreements already existing. There is retroactive effect due to

Article 4 of the Labor Code where the liberality of the law applies and construction is made in

favor of labor. Also, labor laws are police power measures that cannot be barred by a defense ofimpairment of contracts. Police power measures are for promoting the general welfare, over

which the rights of contracting parties must be superseded.

Management prerogatives – not absolute

Restrictions:

1. Must be in good faith


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2. Non-oppressive

3. Not in contravention of contracted stipulations entered into by the employee and employer.

Closed shop agreement – a limitation to the hiring and dismissal of workers

Refusal of promotion – not a valid ground for dismissal, promotion is a reward, the refusal of

which is not a ground for dismissalException: If there was a stipulation in the employment contract that refusal to be promoted shall

be a valid ground for dismissal.

Recruitment and placement

Liability of employment agency in case of illegal dismissal of OFW by the principal is solidary

with the said principal.

Article 18. Ban on Direct Hiring

General Rule: Hiring through an agency in the Philippines is required. This is in conjunction with

the requirement of OFWs to mandatorily remit part of their earnings back to family members in

the Philippines.Exceptions: DION

1. Diplomatic corp members

2. International organizations

3. Other employers as may be allowed by DOLE

4. Name hires

Prohibited acts of licensee and non-licensee

Amendment or alteration of contractual stipulations of employment contracts

If favorable to the employee, it is binding, even if it was not approved by the Secretary of Labor.

If not favorable, such as reduction of benefits, if done unilaterally by the employer, it is notbinding.

Employment of non-resident aliens – general rule, prohibited under Article 40 LC

Exceptions:

1. There are no qualified Filipino workers

2. There are no Filipino workers willing and available to do the work

3. Employment with the understanding that alien shall train Filipinos in doing the same job

Jobs where aliens are disqualified to have under the law/Constitution

Learnership vs. Apprenticeship

Overtime

Service Incentive Leave

Service Charge

Vacation Leave

Holiday Pay (regular and special holiday)


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Employees who are not covered by labor standards in the Labor Code:

1. Government employees

2. Manager, managerial officers, staff and supervisors

3. Field personnel

4. Domestic helper

Note: Due to the Kasambahay Law, a family driver is now to be considered as covered by the

Labor Code.

Employment of minors in relation to the Kasambahay Law:

1. Not below 15 years old

2. Work only during the daytime

3. Have an opportunity to study (elementary and highschool)

4. Not to work in hazardous conditions or situations

5. 40 hours of work in one week

Debt bondage – service as a domestic helper in lieu of payment of money.

Who are not covered by holiday pay? Retail/service establishment with less than 10 workers.

SIL - 5 days leave, convertible to cash if not utilized; employee is qualified for such leave if he

has rendered at least one year of service.

The employer may provide other benefits not provided under the Labor Code which cannot be

eliminated anymore due to the following:

1. Contractual stipulation

2. Long practice or tradition

3. Provided by law or the Constitution

Service Charges vs. TipsOvertime Work – general rule, voluntary only

Exceptions: emergency overtime work

1. In times of war or national emergency

2. Necessary to avail of favorable work conditions, weather or environmental conditions

3. Work is necessary to preserve perishable goods

4. Urgent work done on machines and equipment

5. Prevent loss/damage to the life or property due to emergency or force majeure

6. Prevent serious obstruction or prejudice to the business or operations of the employer.

Wage vs. SalaryBonus – either contractual (part of the wage, paid for work done) or gratuitous (not part of wage,

essentially a donation or reward)

Facilities – items intended to meet the essential needs of workers and their families; part of the

employees’ wages; not inclusive of the tools of the trade, articles or services primarily for the

benefit of the employer or necessary to the conduct of the employer’s business.


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Supplements – additional benefits provided by the employer over and above ordinary wages or

earnings; provided for by the employer for the enhancement or promotion of the business; not

chargeable against the wage of the employees.

Wage distortion

Non-diminution of benefits (Article 100 LC)- Not applicable to non-monetary benefits

- Replacement of benefit withdrawn must be commensurate in vale

- Employer cannot unilaterally remove or withdraw the benefits already given.

Article 128. Visitorial and Enforcement Power of the Secretary of Labor

- No need for an arrest warrant

- Exercised on behalf of those works who are still employed

Those whose employment had ceased and with money claims

With a claim for reinstatement, regardless of amount of money claims – Labor Arbiter

Without Claim for reinstatement with money claims PhP5,000.00 and below – Regional DirectorDeductions by the Employer that are allowed by law even without employee’s consent:

1. SSS contributions

2. Insurance premiums of the employee

3. Union dues/check off as provided in the CBA

4. Special assessments for mandatory union activities

5. Taxes withheld by employer

Special assessment for non-mandatory union activities needs written consent of the employee.

Agency Fee – amount imposed on non-members of the exclusive bargaining unit who receive

benefits from the CBA.Break – compensable, short duration

Meal period – at least 1 hour, not compensable as a rule.

When shortened meal period is allowed:

1. When the operations of employer lasts for 16 hours a day.

2. Duration of the meal period is not less than 20 minutes.

Kinds of Employment

Regular Employment

When does a project employee become a regular worker?

1. Constant rehiring

2. Transferring of assignment to other projects

3. Non-compliance with the reporting requirement to the DOLE at the termination of the project

and termination of workers

Seasonal Employment


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Casual Employment – engaged in performance of activities not necessary or desirable to the

trade or business of the employer; becomes a regular worker after serving at least one year, and

is retained so long as the activity which he is engaged in is still required by the employer.

Probationary employment – employment for a period to enable the employer to determine if the

employee is qualified for regularization; a managerial prerogative; dismissal shall be only forcause; standards of regularization must be made known at the time of hiring, otherwise,

employee is deemed to be a regular worker.

Promotions – as a rule, cannot be the basis of discipline, except if stipulated in the employment

contract.

Employment for a fixed period

Employment of Women Workers

Stipulation against marriage – generally void

Except: Bona fide occupational qualifications

Pregnancy-induced absences – should be allowed by employer

Employment of minors

- Relate with Kasambahay law

- Non-hazardous jobs

- Up to 9 pm only

- No interruption in the child’s development and education

- Not more than 20 hours a week

Home worker vs. House helper

Retrenchment vs. Redundancy

Retrenchment

Due to losses

Separation pay of ½ month pay/year served

Resorted to after other prior measures failed to arrest losses

Redundancy

Due to over-hiring of workers

Separation pay of 1 month pay/year served

Valid authorized cause, use of labor saving device

Serious business losses/reverses – no payment of separation pay requiredSSS

- For the private sector

- The worker and his family are given protection form disability, retirement, maternity or death

- As a rule, compulsory, as it is imposed as a form of police power of the state

- Self-employed individual – depends upon his own efforts to earn, no employee-employer

relationship


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- Employer generally must contribute to SSS

- Once a member, always a member, even if the worker has stopped working in the meantime

- If worker is dismissed for cause, no forfeiture of benefits is had (In GSIS, dismissal for cause

shall result to forfeiture of benefits and return of the premiums.)

SSS Maternity Leave Benefits1. First four childbirth, abortion or miscarriages of the woman employee

2. Employee had paid at least 3 monthly contributions in the 12-month period immediately

preceding the semester of her childbirth or miscarriage

3. Benefit of 100% of her average daily salary credit for 60 days (normal delivery) or 78 days

(caesarian delivery)

Retirement Pension

Disability Benefits

Sickness Benefits

Dependents – means the worker’s relatives; the worker is still alive

Beneficiaries – persons specifically designated to benefit from the SSS pensions after worker’s

death; need not be a relative.

The designated dependent or beneficiary shall benefit from the SSS.

Jeepney drivers are covered by SSS.

Limited Portability Rule

GSIS Law

- Includes GOCCs with original charter

- All those in government service receiving regular remuneration are coveredDisability benefits from the GSIS will be disallowed if the accident was due to:

1. Grave misconduct

2. Notorious negligence

3. Habitual intoxication

4. Willful intention to kill himself or another

Voluntary Separation Benefits – given to an employee who had accepted optional retirement but

has not yet served the minimum 15 years of service.

Involuntary Separation Benefits – a lump sum payment of a worker who undergoes involuntary

retirement due the abolition of the office; minimum 3 years of service.

Retirement Lump Sum Benefits:

1. SSS – 5 years lump sum – 5 years lump sum

2. GSIS – 18 months lump sum.

Employees’ Compensation Program

- Covers both government and private employees


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- Not contributory, employers contribute to the state insurance fund

- Only for work-related injuries and occupational diseases.

Injury – sudden harmful change in the human body, occurred in the workplace, in performance

of his duties or other circumstance.

Proximity Rule – accident occurred so near the work place, so it can be considered as an injurythat occurred in relation to his work.

Occupational disease

1. A disease recognized by the government as occupational

2. A disease established by substantial evidence that the risk of contracting it was increased

due to the prevailing working conditions or functions (increased risk theory)

Persons with disability (PWDs)

- Public ridicule of a PWD during hiring process shall be subject to sanction.

Qualified Disabled vs. Handicapped

Qualified disabled is entitled to 100% wage rate; his disability has nothing to do with doing the

job at hand.

Handicapped people are entitled to 75% wage rate; his disability affects how work is done.

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