Labor Law Review Exam 1

Protection to Labor Clause

The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment for all

Recruitment and Placement

CETCHUP

any act of canvassing, enlisting, transporting, contracting, utilizing, or procuring workers

any person or entity who offers or promises, for a fee, employment to two or more persons is deemed engaged in recruitment and placement

Regulatory and Visitorial Powers

Regulatory power is the power to restrict and regulate recruitment and placement activities by all agencies

Visitorial power is the power to inspect the premises, books of account and records of any person or entity, require reports, and issue orders.

Types of Illegal Recruitment

1. Simple

   1. committed by licensee

   2. committed by non licensee

2. Illegal recruitment with economic sabotage

   1. syndicated - committed by 3 or more persons

   2. large scale - committed against 3 or more persons

Theory of Imputed knowledge

the knowledge of the agent is ascribed to the principal

when are non resident aliens allowed to work

non-availability of a person in the Philippines who is competent, able, and willing to perform the services

Reinstatement pending appeal vs Order of reinstatement

reinstatement pending appeal is immediately executory while order of reinstatement is pursuant to a final and executory judgment

backwages

a remedy affording an employee a way to recover what he has lost by reason of unlawful dismissal

work-related illness elements

1. work-related

   1. existed during the employment contract

when is a medical report is considered timely

issued by company doctor within 120 days;

if doctor fails to give his assessment within 120 days without justifiable reason, the disability becomes permanent and total;

if the doctor fails to give his assessment within 120 days with justifiable reason, the period of diagnosis is extended to 240 days;

if the doctor still failed to give his assessment, the disability becomes permanent and total

Third Doctor Opinion Rule

If the findings of the company doctor disagrees with the findings of the doctor appointed by the seafarer, a third doctor may be agreed jointly between the employer and the seafarer

management prerogative

every employer is free to regulate according to his discretion and judgment all aspects of employment

how should right to transfer be exercised by the employer

it should not be unreasonable, inconvenient, nor prejudicial to the employee

Four-fold test (criteria for determining EER)

SPC-D

1. selection and engagement of employee

2. payment of wages

3. power to control

4. power to dismiss

Control test

determines whether the employer controls not only the result of the work but also the means and methods by which the same is accomplished

Legitimate contracting

FRES

1. free from control

2. rights and benefits for all employees

3. engaged in a distinct business

4. substantial capital

Bunkhouse rule

when an employees is required to stay in the premises of the employer, injuries sustained therein are in the course of employment regardless of the time the same occured

personal comfort doctrine

employer is liable for injuries arising from acts relating to the personal comfort of the employee

diminution of benefit

unilateral withdrawal of benefits already enjoyed by the employees

wage distortion

increase in wage results to elimination of quantitative difference in wage

Learnership vs. Apprenticeship

both OJT

both wage is 75% of minimum wage

occupation: semi skilled | highly technical

theoretical instruction: training only | training + theory

duration: not more than 3 mo | could be more than 3 mo but less than 6 mo

no of trainee: no provision | not more than 20% of workforce