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When what is committed by such NON-LICENSEES or NON-HOLDERS OF AUTHORITY is any of the acts of recruitment allowed only to be done by licensees or holders of authority such as the act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not.
What are illegal recruitment acts that can be committed by No. 1 above (NON-LICENSEE or NONHOLDER OF AUTHORITY)?
Yes, it is clear that conviction under the labor code does not preclude conviction for estafa or other crimes under other laws
Can a person be charged and convicted separately for illegal recruitment and estafa involving one and the same act of recruitment?
The nature of their liability is “solidary” or “joint and several” for any and all claims arising out of the employment contract of OFWs.
What is the nature of the liability between local recruiter and its foreign principal?
No. In order to hold the officers of the agency solidarily liable, it is required that there must be proof of their culpability therefor. Thus, it was held in the 2013 case of Gagui v. Dejero,1 that while it is true that R.A. 8042 and the Corporation Code provide for solidary liability, this liability must be so stated in the decision sought to be implemented. Absent this express statement, a corporate officer may not be impleaded and made to personally answer for the liability of the corporation
Is the solidary liability of corporate officers with the recruitment agency “automatic” in character?
No. The prevailing rule is that OFWs are contractual (fixed-term only), not regular, employees. In fact, they can never attain regularity of employment. The nature of their employment is always fixed-term.
Can an OFW acquire regularity of employment?
Yes, In the absence of proof of applicable foreign law, OFWs are entitled to due process in accordance with Philippine law
Is due process under Philippine law applicable to termination of employment of OFWs?
Yes. The Agabon doctrine of awarding indemnity in the form of nominal damages in cases of valid termination for just or authorized cause but without procedural due process also applies to termination of OFWs.
Is the Agabon doctrine applicable to OFWs who are dismissed for cause but without due process?
Burden of proof devolves on both recruitment agency and its foreign principal.
Who has the burden of proof to show that the dismissal of the OFW is legal?
No. They are not entitled to such reliefs under Article 279 as reinstatement or separation pay in lieu of reinstatement or full backwages. REASON: Because their employment is fixed-term in nature. The nature of their claim therefore is purely monetary, such as the payment of the salary for the unexpired portion of the employment contract in case their dismissal is declared illegal.
Are OFWs entitled to the reliefs under the Labor Code?
Yes. If upon preliminary examination or surveillance, the DOLE Secretary, the POEA Administrator or DOLE Regional Director is satisfied that such danger or exploitation exists, a written order may be issued for the closure of the establishment being used for illegal recruitment activity
Does the POEA Administrator or the DOLE Secretary or DOLE Regional Director have the power to issue closure order?
No. Salazar v. Achacoso,2 declared that the exercise by the DOLE Secretary of his twin powers to issue arrest warrant and search and seizure orders provided under Article 38[c] of the Labor Code is unconstitutional. Only regular courts can issue such orders
Does the DOLE Secretary have the power to issue warrant of arrest and search and seizure orders?
All foreign nationals who intend to engage in gainful employment in the Philippines are required to apply for AEP
Who are required to procure AEP?
Employees in ALL establishments, whether operated for profit or not, are covered by the law on labor standards
Who are covered by the labor standards provisions of the Labor Code?
Yes, provided that no corresponding reduction is made on the employee’s wage or salary equivalent to an 8- hour work day. In instances where the number of hours required by the nature of work is less than 8 hours, such number of hours should be regarded as the employee’s full working day
May normal working hours be reduced?
Every employer is required to give his employees, regardless of sex, not less than one hour or 60 minutes time off for regular meals
What is the rule on time-off for regular meal?
Being time-off, it is not compensable hours worked. In this case, the employee is free to do anything he wants, except to work. If he is required, however, to work while eating, he should be compensated therefor
Is meal break compensable?
Night shift differential is equivalent to 10% of employee's regular wage for each hour of work performed between 10:00 p.m. and 6:00 a.m. of the following day
How is it reckoned and computed?
When the work of an employee falls at night time, the receipt of overtime pay shall not preclude the right to receive night differential pay. The reason is the payment of the night differential pay is for the work done during the night; while the payment of the overtime pay is for work in excess of the regular 8 working days
What is the distinction between night shift differential pay and overtime pay?
refers to the additional compensation required by law for work performed within 8 normal hours of work on non- working days, such as rest days and regular and special holidays
What is premium pay?
refers to the additional compensation for work beyond 8 normal hours of work on a given day. An employee is entitled to both premium pay and overtime pay if he works on a non-working day and renders overtime work on the same day.
What is overtime pay?
In the case the employment contract stipulates that the compensation includes built-in overtime pay and the same is duly approved by the DOLE, the non-payment by the employer of any overtime pay for overtime work is justified and valid
What is built-in overtime pay?
No. When an employee refuses to render emergency overtime work under any of the foregoing conditions, he may be dismissed on the ground of insubordination or willful disobedience of the lawful order of the employer
May an employee validly refuse to render overtime work under any of the afore-said circumstances?
No, The right to claim overtime pay is not subject to a waiver. Such right is governed by law and not merely by the agreement of the parties
Can overtime pay be waived?
It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than twenty-four (24) consecutive hours after every six (6) consecutive normal work days
What is the duration of weekly rest period?
Yes. The employer shall determine and schedule the weekly rest day of his employees subject to CBA and to such rules and regulations as the DOLE Secretary may provide. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds
Is the employer’s prerogative to determine the rest period of its employee subject to limitations?
There are twelve (12) paid regular holidays in a year. This is important for purposes of reckoning certain divisors and computation of employee benefits. The provision on holiday pay is mandatory, regardless of whether an employee is paid on a monthly or daily basis.
How many are the guaranteed paid regular holidays?
Every covered employee who has rendered atleast 1 year of service is entitled to a yearly service incentive leave of 5 days with pay
What is service incentive leave?
Yes, but the grant of 5-day SIL to domestic workers or kasambahays is not based on Article 95 of the Labor Code but on the following provision of R.A. 10361. “SEC. 29. Leave Benefits. – A domestic worker who has rendered at least one (1) year of service shall be entitled to an annual service incentive leave of five (5) days with pay: Provided, That any unused portion of said annual leave shall not be cumulative or carried over to the succeeding years. Unused leaves shall not be convertible to cash.”
.Are KASAMBAHAYS entitled to SIL?
Yes. The service incentive leave is commutable to its money equivalent if not used or exhausted at the end of the year.
Are unavailed service incentive leaves commutable to cash?
R.A. No. 11360 which was approved on August 07, 2019. It amended Article 96 of the Labor Code. It thus now states
What is the newest law on service charges?
Only rank-and-file employees, regardless of their designation or employment status and irrespective of the method by which their wages are paid, are entitled to the 13th month pay benefit. Managerial employees are not entitled to 13th month pay.
Who are covered by the 13th month pay law?
To be entitled to the 13th month pay benefit, it is imposed as a minimum service requirement that the employee should have worked for at least one month during calendar year
What is the minimum period of service required in a calendar year to be entitled to 13th month pay?
Yes. They are now covered under the Kasambahay Law
Are domestic workers or Kasambahays covered?
Yes, they are entitled thereto
Are extras, casuals and seasonal employees entitled to 13th month pay?
3th month pay which is in the nature of additional income, is based on wage but not part of wage
Is 13th month pay part of wage?
The minimum 13th month pay should not be less than one-twelfth (1/12) of the total basic salary earned by an employee within a calendar year
What is the minimum amount of the 13th month pay?
“Basic wage” means all the remuneration or earnings paid by an employer to a worker for services rendered on normal working days and hours but does not include cost-of-living allowances, profit-sharing payments, premium payments, 13th month pay or other monetary benefits which are not considered as part of or integrated into the regular salary of the workers.
What is basic wage?
The minimum wage rates prescribed by law shall be the basic cash wages without deduction therefrom of whatever benefits, supplements or allowances which the employees enjoy free of charge aside from the basic pay
What is minimum wage?
The term “statutory minimum wage” refers simply to the lowest basic wage rate fixed by law that an employer can pay his workers
What is statutory minimum wage?
The term “regional minimum wage rates” refers to the lowest basic wage rates that an employer can pay his workers, as fixed by the Regional Tripartite Wages and Productivity Boards (RTWPBs), and which shall not be lower than the applicable statutory minimum wag
What is regional minimum wage rate?
The term "wage rate" includes cost-of-living allowances as fixed by the RTWPB, but excludes other wage-related benefits such as overtime pay, bonuses, night shift differential pay, holiday pay, premium pay, 13th month pay, premium pay, leave benefits, among others
What are included/excluded in the term “wage rate”?
Yes. The cost-of-living allowance (COLA) may be ordered integrated into the minimum wage by the Regional Tripartite Wages and Productivity Board (“RTWPB” or “Regional Board”)
Can COLA be integrated into the minimum wage?
COLA is the nature of an allowance intended to reimburse expenses incurred by employees in the performance of their official functions. It is not payment in consideration of the fulfillment of official duty. As defined, “cost of living” refers to “the level of prices relating to a range of everyday items” or “the cost of purchasing the goods and services which are included in an accepted standard level of consumption.” Based on this premise, COLA is a benefit intended to cover increases in the cost of living
What is COLA?
The “no work, no pay” or “fair day’s wage for fair day’s labor” means that if the worker does not work, he is generally not entitled to any wage or pay. The exception is when it was the employer who unduly prevented him from working despite his ableness, willingness and readiness to work; or in cases where he is illegally locked out or illegally suspended or illegally dismissed, or otherwise illegally prevented from working, in which event, he should be entitled to his wage
What is the “NO WORK , NO PAY” principle
All covered females, regardless of civil status, employment status, and the legitimacy of her child, are entitled to maternity leave
Who are women entitled to maternity leave?
Under the old law: 60 days – for normal delivery; and 78 days – for caesarian delivery
Under new law: Paid leave benefit granted to a qualified female worker in both the PUBLIC SECTOR and the PRIVATE SECTOR (which is covered by the SSS, including those in the informal economy), for the duration
What is the period of leave? (maternity leave)
Yes. For as long as a woman is pregnant, she is entitled to maternity leave benefit regardless of whether she is married or unmarried.
Is an unmarried woman entitled to maternity leave benefit under both old and new law?
Paternity leave” covers a married male employee allowing him not to report for work for seven (7) CALENDAR days but continues to earn the compensation therefor, on the condition that his spouse has delivered a child or suffered miscarriage for purposes of enabling him to effectively lend support to his wife in her period of recovery and/or in the nursing of the newly born child
What is paternity leave benefit?
Every married employee in the private and public sectors is entitled to a paternity leave of seven (7) calendar days with full pay for the first four (4) deliveries of the legitimate spouse with whom he is cohabiting
What is the covered total number of deliveries?
No. In the event that the paternity leave benefit is not availed of, said leave shall not be convertible to cash
Is an unavailed paternity leave benefit convertible to cash?
This is the leave benefit granted to a male or female solo parent to enable him/her to perform parental duties and responsibilities where his/her physical presence is required
What is the solo parent leave?
The solo parent leave shall not be more than seven (7) WORKING days every year to a solo parent who has rendered service of at least one (1) year, to enable him/her to perform parental duties and responsibilities where his/her physical presence is required. This leave shall be non-cumulative
How many days may be availed of as a solo parent leave?
No. In the event that the parental leave is not availed of, said leave shall not be convertible to cash unless specifically agreed upon previous
Is an unavailed parental leave convertible to cash?
A special leave benefit for women was granted under R.A. No. 9710, otherwise known as “The Magna Carta of Women” [August 14, 2009]. Thus, any female employee in the public and private sector regardless of age and civil status shall be entitled to a special leave of two (2) months with full pay based on her gross monthly compensation subject to existing laws, rules and regulations due to surgery caused by gynecological disorder
What is this special leave benefit?
No. This leave should be distinguished from maternity leave benefit, a separate and distinct benefit, which may be availed of in case of childbirth, miscarriage, complete abortion or emergency termination of pregnancy
Is this special leave similar to maternity leave?
This special leave is granted to a woman employee who is a victim under this law. It is for a total of ten (10) days of paid leave of absence, in addition to other paid leaves under the law. It is extendible when the necessity arises as specified in the protection order. Its purpose is to enable the woman employee to attend to the medical and legal concerns relative to said law. This leave is not convertible to cash
What is leave for victims of violence against women and children?
At any time during the application of any protection order, investigation, prosecution and/or trial of the criminal case, a victim of Violence Against Women and their Children (VAWC) who is employed shall be entitled to said paid leave of up to ten (10) days. The Punong Barangay/kagawad or prosecutor or the Clerk of Court, as the case may be, shall issue a certification at no cost to the woman that such an action is pending, and this is all that is required for the employer to comply with the 10 day paid leave
What is the requirement for leave for victims of violence against women and children
R.A. No. 9710, otherwise known as “The Magna Carta of Women,” is a comprehensive women’s human rights law that seeks to eliminate discrimination against women by recognizing, protecting, fulfilling and promoting the rights of Filipino women, especially those in marginalized sector
What are acts of discrimination under the Magna Carta of women?
Article 136 of the Labor Code considers as an unlawful act of the employer to require as a condition for or continuation of employment that a woman employee shall not get married or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated. It is likewise an unlawful act of the employer, to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage
Is the prohibition against marriage valid?
Yes. Sexual harassment is not the sole domain of women as men may also be subjected to the same despicable act. Said law does not limit the victim of sexual harassment to women
Can sexual harassment be committed also against man?
Work, education or training-related sexual harassment is committed by any employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from another, regardless of whether the demand, request or requirement for submission is accepted by the object of said act
Who are the person who may held liable for sexual harassment?
R.A. No. 10361 applies to all domestic workers employed and working within the country. It shall cover all parties to an employment contract for the services of the following Kasambahay, whether on a live-in or live-out arrangement
What is the coverage of the Kasambahay Law?
Yes. The employment contract must be in writing and should contain the conditions set by law
is the employment contract required to be in writing?
Yes. After one (1) year from the effectivity of the Kasambahay Law, and periodically thereafter, the Regional Tripartite and Productivity Wage Boards (RTPWBs) shall review, and if proper, determine and adjust the minimum wage rates of domestic workers
Are the minimum wages subject to review by the RTWPBs or Regional Boards?
Yes. Under R.A. No. 7277, it is provided that subject to the provisions of the Labor Code, as amended, PWDs shall be eligible as apprentices or learners; provided that their handicap is not as much as to effectively impede the performance of job operations in the particular occupation for which they are hired and provided further that after the lapse of the period of apprenticeship, if found satisfactory in the job performance, they shall be eligible for employment
Are PWDs eligible for apprenticeship and learnership?
Yes, but only among themselves. They cannot join and rank and file union
Are front-line managers or supervisors eligible to join, form or assist a labor organization?
No, except if the following requisites are complied with: (1) He should have a valid working permit issued by the DOLE; and (2) He is a national of a country which grants the same or similar rights to Filipino workers OR which has ratified either ILO Convention No. 87 or ILO Convention No. 98 (ON THE RIGHT TO SELFORGANIZATION OF WORKERS) as certified by the Philippine Department of Foreign Affairs (DFA)
Do alien employees have the right to join a labor organization?
No, because they are co-owners of the cooperative
Do members cooperative have the right to join form or assist a labor organization?
Yes, because they have employer - employee relationship with the cooperative
Can employees of cooperative have the right to join form or assist a labor organization?
No, because the prohibition covers employees of the cooperative who are at the same time members thereof
Can a members who are at the same time employees of the cooperative have the right to join form or assist a labor organization?
Can employees of job contractors join, form or assist a labor organization
Yes, for their mutual aid and protection but not for collective bargaining purposes since they have no employers but themselves. BUT AS AND BY WAY OF DISTINCTION, THEIR LABOR ORGANIZATION IS CALLED “WORKERS’ ASSOCIATION
Are self-employed persons allowed to join, form or assist a labor organization?
No more, because of its repeal and being replaced by the new mode called “REQUEST FOR SEBA CERTIFICATION” per Department Order No. 40-I-15, Series of 2015, (Sept. 7, 2015)
Is voluntary recognition still a proper mode of selecting a SEBA?
No. It may be an oral or written contract. A written contract is not necessary for the creation and validity of the relationship. The only exception is in the case of Kasambahay where, under the Kasambahay Law, it is required that the contract of employment should be in writing
is it necessary to have a written contract of employment in order to establish employer-employee relationship?
The answer is it is neither the minimum nor the maximum period of probationary employment. The 6-month period is mentioned in the law for purposes of setting the standard period. Proof that it is not the maximum is the case of Buiser v. Leogardo where the probationary period of 18 months was considered reasonable. In other words, probationary period may be for a day, a week, a month or several months, depending on the reasonable discretion of management
Is the period of 6 months in the law on probationary employment (Article 296 [281], LC) the minimum or maximum period?
The 6-month probationary period should be reckoned “from the date of appointment up to the same calendar date of the 6th month following
How is probationary period, say, of 6 months computed
Yes, but only upon the mutual agreement in writing by the employer and the probationary employee
May probationary period be extended?
What is the effect of allowing a probationary employee to work beyond the probationary period?
If there is no written contract, the employee is considered a regular employee from day one of his employment. And even if there is one, he is deemed regular if there is no stipulation on probationary perio
What is the effect if there is no written contract providing for probationary employment?
The distinction lies in the intention of the parties. If the parties intend to make their relationship regular after the lapse of the period, say of 6 months, then what is contemplated is probationary employment; if there is no such intention of the parties, then, what they have entered into is simply a fixed-term contract
What is the distinction between probationary employment and fixed-term employment?
No, Length of service is not a controlling determinant of employment tenure.
Is length of service material in determining validity of project employment?
Yes, provided the following requisites are complied with: 1. The seasonal employee should perform work or services that are seasonal in nature; and 2. They must have also been employed for more than one (1) season
Can a seasonal employee become a regular seasonal employee?
Yes, the reason is being a regular seasonal employee, the employer should re-hire him in the next season. During off-season, his employment is deemed suspended and he is considered as being on leave of absence without pay
Can a regular seasonal worker file an illegal dismissal case in the event he is not hired for the next season
Casual employee becomes regular after one year of service by operation of law. The one (1) year period should be reckoned from the hiring date. Repeated rehiring of a casual employee makes him a regular employee
When does a casual employee become regular?
Yes. Fixed-term employment is the only exception to the rule that one becomes regular if he is made to perform activities directly related to the principal business of the employer (Regularity by virtue of nature of work)
Is fixed-term employment valid if the job is directly related to the principal business of the employer?
The 555 Doctrine is a scheme of the employer in hiring workers on a uniformly fixed 5-month basis and replacing them upon the expiration of their contracts with other workers with the same employment status circumvents their right to security of tenure.
What is 555 Doctrine?
None. There is no employment relationship nor any form of contractual relationship of whatsoever nature between the principal and the workers supplied by the contractor. Hence, the principal can ask the contractor to remove any of the latter’s employees assigned or farmed out to it anytime without need to observe due process
Is there any employment relationship and/or contractual relationship between the principal and the contractor’s workers farmed out to the principal?
Yes. Legitimate job contracting may not only be engaged by corporations, partnerships or single proprietorships. Individuals may become legitimate job contractors themselves for as long as they have SPECIAL SKILLS, TALENTS or EXPERTISE which are considered equivalent of the requirement regarding “INVESTMENT IN TOOLS.
May individuals engage in legitimate job contracting?
NO. They need not be registered as independent contractors with DOLE; they need not have substantial capital (such as the P5 Million stated above). All that they are required is to have their tools consisting of SPECIAL SKILLS, TALENT or EXPERTISE
Are individuals engaged as legitimate job contractors required to fulfill the requisites of legitimate job contracting as afore-described?
NO, it is absolutely prohibited
Is labor-only contracting allowed under the law?
The labor-only contractor will be treated as the agent or intermediary of the principal. Since the act of an agent is the act of the principal, representations made by the labor-only contractor to the employees will bind the principal. 2. The principal will become the direct employer as if it directly employed the workers supplied by the laboronly contractor to undertake the contracted job or service. The principal will be responsible to them for all their entitlements and benefits under labor laws. 3. The principal and the labor-only contractor will be solidarily treated as the direct employer
What are the EFFECTS of labor-only contracting?
Yes, the employer should afford both substantive and procedural due process to the employee. It cannot terminate his employment merely on the basis of the recommendation of the union.
Is the employer required to observe due process before terminating an employee who is recommended by the SEBA for termination due to violation of the union security clause?
No. The employer cannot adopt the due process afforded by the SEBA as its own due process for the simple reason that such due process concerns the termination of membership of the employee from the SEBA.
Can the employer adopt the due process afforded by the SEBA to the employee in expelling him from his membership in the SEBA?
No. The two-notice requirement and hearing are required only in case of just cause termination BUT NOT IN AUTHORIZED CAUSE TERMINATION (EXCEPT ON THE GROUND OF DISEASE PER DEOFERIO DOCTRINE
Are the twin-notice requirement and hearing required in all cases of termination?
Yes. Separation pay, as a substitute remedy, is only proper for reinstatement but not for backwages
Is separation pay applicable only to reinstatement as an alternative remedy?
Five (5) years is the minimum years of service that must be rendered by the employee before he can avail of the retirement benefits upon reaching optional or compulsory retirement age under Article 287
What is the minimum years of service required for entitlement under the law?
The rule is different. The optional retirement age of underground mine workers is 50 years of age; while the compulsory retirement age is 60 years old
What is the retirement age of underground mine workers?
MIN. OF 5 YEARS
What is the minimum number of years of service required of underground mine workers?
Yes. In fact, other than the retirement age, all other requirements as well as benefits provided in the law are applicable to underground mine workers
Are the retirement benefits of underground mine workers similar to ordinary retirees?
Note
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