Labor Law Midterms

Sources of Labor Law

1. 1987 Constitution

   1. Article XIII Section 3

2. Presidential Decree No. 442

   1. Labor Code

Rights of Workers under Constitution

• Self-organization

• Collective bargaining and negotiations

• Peaceful concerted activities

  • Including right to strike in accordance with law

• Security of tenure

• Humane conditions of work

• Living wage

• Participation in policy and decision making processes affecting their rights and benefits

• Principle of shared responsibility between workers and employers

• Right of labor to its just share in fruits of production

• Right of enterprises to reasonable returns to investments

Factors Determining Employer-Employee Relationship

1. Four-Fold Test

   1. Selection and engagement of worker

   2. Payment of wages or salaries

   3. Power of dismissal

   4. Power of control not just end result but manner and means utilized

2. Economic Reality test

   1. Based on totality of circumstances → if economic dependency

Kinds of Employees

1. Found in labor code

   1. Regular → employee engaging in desirable activities

   2. Casual → employment not covered in 1st paragraph of article 295

   3. Project → employment fixed for a specific project

   4. Seasonal → work performed is seasonal in nature and employed for duration of the season

2. Other kinds

   1. Probationary

   2. Fixed Term Employment

   3. Learners and Apprentices

   4. Women Workers

   5. Minor Employment

   6. Kasambahay

   7. Persons with Disability

Employees Becoming Regular Employees

• Casual:

  • Rendered at least 1 year of service, continuous or broken

• Probationary employees

  • Working after the probationary period ended

• Project Employee

  • Continuous rehiring of project employees even after the end of the project

  • Tasks performed by employee are vital, necessary and indispensable to business or trade of the employer

• Seasonal

  • Hired repeatedly for the same task or work

• Learners:

  • Employer obliged to hire learner after lapse of learnership period

Probationary Employment

• Period to determine whether employee meets standards to become a regular employee

• Period shall not exceed 6 months

  • If past 6: becomes regular employee

• Employer makes known to employee the standards being considered

• Employment of probationary employee may be terminated only for a just cause, or if they fail to qualify as a regular employee based on the standards

IF NO STANDARDS MADE KNOWN: employee deemed regular

Fixed Term Employment

Contract of employment with fixed term should comply w/:

1. Fixed period known and agreed upon by parties

2. Appears that employer and employee dealt with each other on more o r less equal terms with no moral dominance

Learners and Apprentices

• Learners employed when:

  • No experienced workers available

  • Employment of learners necessary to prevent curtailment of employment opportunities

  • Employment doesn’t create unfair competition (labor costs or lower working standards)

• Apprentices

  • Employer has to be in highly technical industry

  • Apprenticeship is in an apprenticable occupation

  • Approved by Secretary of Labor and employment

  • Must be signed

WAGES: 75% of legal wage

Duration of apprenticeship: Not exceed 6 months, but not less than 3 months

Subcontracting

• Trilateral Relationship

  • Principal

  • Subcontractor

  • Subcontracted

Kinds of Subcontracting

1. Labor only contracting

   1. Person supplying workers to an employer doesn’t have substantial capital or investments in tools, equipment, etc. Basically they are just agents.

2. Job Contracting

   1. Distinct Business

   2. Substantial Capital

   3. Free from principal’s control

   4. Workers’ rights are ensured

Facilities for Women (Article 130 of labor code)

1. Proper seats for women to use when free from work or during work hours

2. Separate toilet rooms

3. Dressing room

4. Nursery in the workplace

5. Appropriate minimum age and other standards for retirement or termination

But not required ^^

Leaves for Women

1. Maternity Leave (R.A. 11210)

   1. 105 days

   2. If solo parent: + 15 days

2. Leave under R.A. 9262

   1. 10 days

3. Leave due to Gynecological Surgery (R.A. 9710)

   1. 2 months

4. Solo Parent’s Leave (R.A. 8972)

   1. 7 working days per year

Prohibitions against Discrimination of Women (Article 133 of labor code)

1. Payment of lesser compensation to a female employee as against a male employee for work of equal value

2. Favoring a male employee over a female employee with respect to promotion, training opportunities, etc. solely on account of their sexes

3. Favoring a male employee over a female employee with respect to dismissal of personnel

Stipulations against Marriage (Article 134)

Unlawful for employer to:

1. Make a condition of employment be that woman employee shall not get married

2. That woman employee shall be deemed resigned upon marriage

3. Dismiss, discharge, discriminate or otherwise prejudice a woman employee by reason of her marriage

Prohibited acts against Women (Article 135)

1. Deny any women employee the benefits provided for in the labor code or to discharge woman employee to prevent her from enjoying any of the benefits

2. Discharge a woman on account of her pregnancy, or while on leave or confinement due to pregnancy

3. Discharge or refuse admission of such woman upon returning to her work for fear that she may again be pregnant

Disabled persons / Handicapped

Those suffering from restriction of different abilities, mental physical or sensory

Equal Opportunity R.A. 7277

Qualified disabled employee shall be subject to same terms and conditions of employment and same compensation, benefits, etc. as a qualified able-bodied person

Sheltered Employment

Provision of productive work for disabled persons through workshop providing special facilities, income producing projects or homework schemes enabling them to acquire a working capacity required in open industry

Incentive for Employers in hiring Disabled Persons

1. 25% deduction from gross income of employed disabled persons

2. Private entities that modify or improve physical facilities for accommodation are entitled to deduction from net taxable income equivalent to 50% of direct costs of improvements or modifications

Child and Working Child

Child: Anyone below 18 years old
Working child: Any child engaged in work or economic activity

Working Child below 15 Years Old

1. Child works directly under sole responsibility of his parent/guardian and doesn’t interfere with schooling

2. Child’s employment in public entertainment or information through cinema, etc. is essential

Working Hours of a Child

• Below 15

  • Max 4 hours a day

  • 20 hours a week

  • Curfew: 8PM to 6AM

• 15-17

  • Max 8 hours a day

  • 40 hours a week

Worst Forms of Child Labor

1. All forms of slavery

2. Use, procuring, offering or exposing of a child for prostitution

3. Use, procuring or offering of a child for illegal or illicit activities (production and trafficking of dangerous drugs)

4. Work which is hazardous or likely to be harmful to the health, safety or morals of children

Employment of children in certain advertisements

Children can’t be models in advertisements promoting alcoholic beverages, intoxicating drinks, tobacco, gambling, violence or pornography

Coverage of Kasambahay Law

• General househelp

• Nursemaid / yaya

• Cook

• gardener or laundry person

• Any person who regularly performs domestic work in one household on an occupational basis

DOESNT INCLUDE: children under foster family arrangement

Rights of Kasambahay

1. Just and human treatment

2. Lodging, food, medical attendance

3. Privacy

4. Access to outside communication

5. Education and Training

Terms and Conditions of Employment of Kasambahay

• Minimum age of 15

• 8 hours a day

• 1 rest day a week

• Can’t be assigned to work in commercial, industrial or agricultural enterprise at wage lower than what would be provided for those workers

• NCR 5,000 minimum wage

• Pay wage at least once a month in cash

• Entitled to 13th month pay

• Worker who rendered at least 1 year of service = gets annual leave of 5 days with pay

• Worker who rendered at least 1 month of service = covered by SSS, PhilHealth, Pag-IBIG

• Premium payments or contributions shouldered by employee

  • Unless domestic worker receiving wage of PHP 5000 and above = pay proportionate share

Wages definition (Article 97 f of Labor Code)

• Remuneration or earnings expressed in terms of money

• Payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done

• Generally, employer and employee agree on amount of wage an dhow it is determined

  • Fixed for a period or by task or result

Minimum Wage

Minimum amount employer is required to pay wage earners, that cannot be reduced.

2 bodies that determine minimum wage for regions: National wages and productivity Commission (policy making body),
Regional Tripartite Wages and Productivity Boards (minimum wages in specific regions)

What should Wages be paid in

• Legal Tender

• Payment by check, postal money order or ATM is allowed if

  • Bank or other facility for encashment within a radius of 1 km from workplace

  • Employer doesn’t receive any benefits from the arrangement

  • Employees given reasonable time during banking hours to withdraw wages from bank (time considered compensable hours worked if done during working hours)

  • Check payment with written consent of employees

When should wages be paid

Paid at least once every 2 weeks, or not more than 16 day interval

Where should wages be paid

Made at or near the place of undertaking

To Whom should wages be paid

Paid directly to workers to whom they are due except:

• Where fore majeure prevents payments → workers paid through another person

• If worker is dead = employer may pay to the heirs

Rules on Wages

• No Interference → employer can’t interfere with freedom of employee to dispose of their wages

• No deductions except

  • Reimbursment of insurance paid by employer

  • Union dues where right to check off has been recognized by employer

  • When employer is authorized by law such as for taxes and payment of SSS, PhilHealth, PAG-Ibig

• No deposits for tools

• Forcing, intimidating or otherwise causing worker to give up part of their wage without consent

Coverage of Wage Related Benefits

All except:

• Government employees

• Managerial employees

• Feild personnel

• Members of family of employer

• Domestic Helpers

• Persons in the personal service of another

• Workers who are paid by results as determined by Secretary of Labor

Hours of work and Overtime pay

• Normal hours: 8

• Meal periods of 1 hour or less: not counted in hours worked

• Rest periods and coffee breaks of 5-20 minutes: considered hours worked

• Overtime pay: Regular wage + 25%

• Overtime on holiday or rest day: Additional compensation equivalent to rate of first 8 hours on a holiday or rest day plus 30%

Night Shift Differential in Wages

Minimum additional of 10% of regular wage for each hour of work during 10PM to 6AM

Weekly Rest Periods

Employees entitled to a rest period of minimum 24 hours after every 6 normal work days

-If worked on rest day: additional compensation of 30% of regular wage

-If worked on rest day that is also holiday: premium is 50% of regular wage

Holidays

2 kinds:

-Regular: 200% of wage if worked, 100% if not

-Special: 130% of wage if worked, 0% if not

Regular Holidays

1. New Year’s Day- Jan 1

2. Maundy Thursday, Good Friday, Edul Fitr, Eidul Adha - all movable dates

3. Araw ng Kagtingan - Monday nearest April 9

4. Labor Day- Monday nearest May 1

5. Independence Day- Monday nearest June 12

6. National heroes Day- Last Monday of August

7. Bonifacio Day - Monday nearest November 30

8. Christmas - December 25

9. Rizal Day - Monday nearest December 30

Special Days/ Special Holidays

1. Ninoy Aquino Day- Monday nearest August 21

2. All Saints Day- November 1

3. Feast of the Immaculate Conception - December 8

4. Last Day of the Year- December 31

Service Incentive Leave

Every employee who rendered at least 1 year of service: yearly service incentive leave of 5 days with pay

NOT AVAILBLE TO ESTABLISHMENT SWITH LESS THAN 10 EMPLOYEES

Leave days unused by end of year : converted to cash, can’t be added to next year

Service Charges

Service charges collected by hotels, restaurants, etc. will be distributed equally among workers

13th Month Pay

All rank and file employees who worked at least one month during calendar year: Entitled to not less than 1/12 of total basic salary earned within a calendar year

SHOULDN’T BE PAID LATER THAN DEC 24

Summary of Pay Rates