Bacunganlaborstandardslaws New

7/23/2019 Bacunganlaborstandardslaws New

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LABOR STANDARDS LAWS

(LAWS ON CONDITIONS OF EMPLOYMENT

AND ON HEALTH AND SAFETY)

By: Dean Froilan M. Bacungan

3.1. The 1987 Constitution mandates that the State shall afford full

protection to labor. In furtherance of this mandate, the Constitution also

provides that all workers shall be entitled to security of tenure, humaneconditions of work, and a living wage. The laws that implement these

constitutional mandates are called Labor Standards Laws. What are our

Labor Standards Laws?

The Labor Standards Laws (which could also be called Laws on Conditionsof Employment and on Health and Safety) are the Law on Hours of Work (Art. 82-87, Labor Code), Law on Weekly Rest Periods (Art. 91-93, Labor Code), HolidayPay Law (Art. 94, Labor Code), Law on Service Incentive Leaves (Art. 95, LaborCode), and Law on Service Charges (Art. 96, Labor Code).

A very important Labor Standards Law that seeks to assure workers adecent living wage is the Law on Wages (Art. 97-129, Labor Code).

Other very important Labor Standards Laws are the laws prescribingworkingconditions for special groups of employees, i.e. Law on the Employment ofWomen, (Art. 130-139, Labor Code), Law on the Employment of Minors (Art.139-140, Labor Code), Law on the Employment of Househelpers (Art. 141-152,Labor Code) and Law on Industrial Homeworkers (Art. 153-154, Labor Code).

Labor Standards laws that provide for the health and safety of employees,are the Medical and Dental Services Law (Art. 156-161, Labor Code) and the Lawon Occupational Health and Safety (Art. 162-165, Labor Code).

The Labor Standards Law that seeks to assure workers to security of tenureis the Law of Termination of Employment (Art. 278-266, also Art. 277 (b), LaborCode). Related to the Law on Termination is the Law on Retirement (Art. 287,Labor Code).

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The above Labor Standards Laws as amended and modified by therespective Republic Acts seek to assure workers humane working conditions of

work.3.2. The Labor Standards Laws provide rights granted to employees. The

employers of said employees, in turn, have the legal obligation to see that

these rights are realized. The existence of an employer-employee relation is,

therefore, a prerequisite for the application of Labor Standards Laws. What

are the legal definitions of employer, employee and employer-employee

relationship.

A basic factor underlying the exercise of rights and the filing of claims for

benefits under the Labor Code and other presidential issuances or labor legislationsis the status and nature of one's employment. Whether an employer-employeerelationship exists and whether such employment is managerial in character or thatof a rank and file employee are primordial considerations before extending labor

benefits. (Elias Villuga vs. NLRC, G.R. No. 75038, August 23, 1993)

It is firmly settled that the existence or non-existence of the employer-employee relationship is commonly to be determined by examination of certainfactors or aspects of that relationship. These include: (a) the manner of selection

and engagement of the putative employee; (b) the mode of payment of wages; (c)the presence or absence of a power to control the putative employee's conduct,although the latter is the most important element . (Pilipinas Shell PetroleumCorporation vs. Court of Appeals, G.R. No. 104658, April 7, 1993)

Jurisprudence is firmly settled that whenever the existence of anemployment relationship is in dispute, four elements constitute the reliableyardstick: (a) the selection and engagement of the employee; (b) the payment ofwages; (c) the power of dismissal; and (d) the employer's power to control the

employee's conduct. It is the so-called "control test," and that is, whether theemployer controls or has reserved the right to control the employee not only as tothe result of the work to be done but also as to the means and methods by whichthe same is to be accomplished, which constitute the most important index of theexistence of the employer-employee relationship. Stated otherwise, an employer-employee relationship exists where the person for whom the services are

performed reserves the right to control not only the end to be achieved but also the




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means to be used in reaching such end. (Aurora Land Projects Corporation vs.

NLRC, G.R. No. 114733, January 2, 1997)

The fact that it used payslips did not even prove that it paid the worker'ssalaries; this was only for accounting purposes. (Leonardo vs. CA, G.R. No.152459, June 15, 2006)

Where private respondent company selected and engaged the services ofpetitioner as its resident agent in the Philippines, paid the latter's salary, held thepower of dismissal as shown by the various memorandum it issued to petitioner,had the power of control over the means and method of petitioner in accomplishinghis work, it was ruled that employer-employee relationship existed between the

parties. Exercise of the power of control by the company consisted of variousdirectives it issued to petitioner. (Mendiola vs. CA, G.R. No. 159333, July 31,2006;Consulta vs. CA, G.R. No. 145443, March 18, 2005)

LAW ON HOURS OF WORK

3.3. Are the laws of hours of work, weekly rest periods, holiday pay, and

service incentive leaves applicable to all employees?

No, the above laws shall apply to employees in all establishments andundertakings, whether for profit or not, but not to government employees,managerial employees, field personnel, members of the family of the employerwho are dependent on him for support, domestic helpers, persons in the personalservice of another, and workers who are paid by results as determined by theSecretary of Labor in appropriate regulations.

Managerial employees mentioned above, refer to those whose primary

duty consists of the management of the establishment in which they are employedor of a department or subdivision thereof, and to other officers or members of themanagerial staff.

Field personnel shall refer to non-agricultural employees who regularlyperform their duties away from the principal place of business or branch office ofthe employer and whose actual hours of work in the field cannot be determinedwith reasonable certainty. (Art. 82, Labor Code)




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There are also these provisions on the employees not covered by the saidlaws:

Managerial employees are those employees who meet all of the followingconditions, namely:

1. Their primary duty consists of the management of the establishment inwhich they are employed or of a department or sub-division thereof;

2. They customarily and regularly direct the work of two or moreemployees therein;

3. They have the authority to hire or fire other employees of lower rank;

or their suggestions and recommendations as to the hiring and firing and as to thepromotion or any other change of status of other employees are given particularweight. (Book III, Rule I, Sec. 2(b) LC Rules and Regulations)

Officers or members of a managerial staff are those who perform thefollowing duties and responsibilities:

1. The primary duty consists of the performance of work directly relatedto management policies of their employer;

2. Customarily and regularly exercise discretion and independent

judgment;3. (i) Regularly and directly assist a proprietor or a managerial

employee whose primary duty consists of the management of the establishment inwhich he is employed or subdivision thereof; or (ii) execute under generalsupervision work along specialized or technical lines requiring special training,experience, or knowledge; or (iii) execute under general supervision specialassignments and tasks; and

4. Who do not devote more than 20 percent of their hours work in a

workweek to activities which are not directly and closely related to theperformance of the work described in paragraphs 1, 2, and 3 above. (Book III,Rule I, Sec. 2(c), LC Rules and Regulations)

Domestic servants and persons in the personal service of another are thosewho perform such services in the employers home which are usually necessary ordesirable for the maintenance and enjoyment thereof, or minister to the personalcomfort, convenience, or safety of the employer as well as the members of hisemployers household. (Book III, Rule I, Sec. 2(d), LC Rules and Regulations)




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3.4. What are the rights of workers under the Law on Hours of Work?

The rights of workers under the above law are:

(1) Right to rest, i.e. right not to work overtime except in cases ofemergency overtime work;

(2) Right to an additional compensation for overtime work;

(3) Right to a meal period; and

(4) Right to a night shift differential.

In addition to the above rights, the Law on Hours of Work also gives healthpersonnel the right to a forty-hour-work.

3.5. What are the normal hours of work under the law?

The normal hours of work of any employee shall not exceed eight (8) hoursa day. (Art. 83, Labor Code)

3.6. What is overtime work? What is the compensation for overtime work?

Work performed beyond eight (8) hours a day is overtime work.

Work may be performed beyond eight (8) hours a day provided that theemployee is paid for the overtime work, an additional compensation equivalent tohis regular wage plus at least twenty-five percent (25%) thereof. Work performed

beyond eight hours on a holiday or rest day shall be paid an additionalcompensation equivalent to the rate of the first eight hours on a holiday or rest day

plus at least thirty percent (30%) hereof. (Art. 87, Labor Code)

3.7. May an employee be required by the employer to perform overtime

work?

An employee may not be required by the employer to perform overtimework, except in emergency overtime work. (Art. 98, Labor Code)

3.8. What are the cases of emergency overtime work where the employee

may be required by the employer to perform overtime work?

Any employee may be required by the employer to perform overtime workin any of the following cases:




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(a) When the country is at war or when any other national or localemergency has been declared by the National Assembly or the Chief Executive.

(b) When it is necessary to prevent loss of life or property or in case ofimminent danger to public safety due to an actual or impending emergency in thelocality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, orother disaster or calamity;

(c) When there is urgent work to be performed on machines, installations,or equipment, in order to avoid serious loss or damage to the employer or someother cause of similar nature;

(d) When the work is necessary to prevent loss or damage to perishable

goods; and

(e) Where the completion or continuation of the work stated before theeighth hour is necessary to prevent serious obstruction or prejudice to the businessor operations of the employer.

Any employee required to render overtime work shall be paid the additionalcompensation as provided for in Book III, Title I, Chap. I on the Labor Code. (Art.89, Labor Code)

3.9. In determining whether or not an employee has worked overtime, what

are considered as hours worked?

Hours worked shall include (a) all time during which an employee isrequired to be on duty or to be at the prescribed workplace, and (b) all time duringwhich an employee is suffered or permitted to work.

Rest periods of short duration during working hours shall be counted ashours worked. (Art. 84, Labor Code)

Rest periods or coffee breaks running form five (5) to twenty (20) minutes

shall be considered as compensable working time. (Book III, Rule I, Sec. 7, LCRules and Regulations)

The following general principles shall govern in determining whether thetime spent by an employee is considered hours worked:

a. All hours are hours worked which the employee is required to give tohis employer, regardless of whether or not such hours are spent in productive laboror involved physical or mental exertion;




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b. An employee need not leave the premises of the workplace in orderthat his rest period shall not be counted, it being enough that he stops working,

may rest completely and may leave his workplace, to go elsewhere, whether withinor outside the premises of his workplace;

c. If the work performed was necessary, or it benefited the employer, orthe employee could not abandon his work at the end of his normal working hours

because he had no replacement, all time spent for such work shall be considered ashours worked, if the work was with the knowledge of his employer or immediatesupervisor;

d. The time during which an employee is inactive by reason of

interruptions in his work beyond his control shall be considered time either if theimminence of the resumption of work requires the employees presence at theplace of work or if the interval is too brief to be utilized effectively and gainfully inthe employees own interest.

Waiting time spent by an employee shall be considered as working time ifwaiting is an integral part of his work or the employee is required or engaged bythe employer to wait.

An employee who is required to remain on call in the employers premises

or so close thereto that he cannot use the time effectively and gainfully for his ownpurpose shall be considered as working while on call. An employee who is notrequired to leave word at his home or with company officials where he may bereached is not working while on call.

Attendance at lectures, meetings, training programs, and other similaractivities shall not be counted as working time if all of the following conditions aremet:

a. attendance is outside of the employees regular working hours;

b. attendance is in fact voluntary; andc. the employee does not perform any productive work during such

attendance. (Book III, Rule I, Secs. 4, 5, and 6, LC Rules and Regulations)

3.10. May undertime be offset by overtime?

No, undertime work on any particular day shall not offset by overtime workon any other day. Permission given to the employee to go on leave on some other




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day of the week shall not exempt the employer from paying the additional

compensation required for overtime work. (Art. 88, Labor Code)

3.11. How is overtime and other additional remuneration, such as for work

on a rest day or on a special holiday computed?

For purposes of computing overtime and other additional remuneration suchas for work on a rest day, or on a special holiday, the regular wage of anemployee shall include the cash wage only without deduction on account offacilities provided by the employer. (Art. 90, Labor Code)

3.12. How is the right to a meal period implemented?Subject to such regulations as the Secretary of Labor may prescribe, it shall

be the duty of every employer to give his employees not less than sixty (60)minutes time-off for their regular meals. (Art. 85, Labor Code)

Every employer shall give his employees, regardless of sex, not less thanone (1) hours time-off for regular meals, except in the following cases when a meal

period of not less than twenty (20) minutes may be given by the employer providedthat such shorter meal periods is credited as compensable hours worked of theemployee:

a. Where the work is non-manual work in nature or does not involvestrenuous physical exertion;

b. Where the establishment regularly operates not less than sixteen hoursa day;

c. In cases of actual or impending emergencies or there is urgent work tobe performed on the machinery, equipment or installations to avoid serious losswhich the employer would otherwise suffer; and

d. Where the work is necessary to prevent serious loss of perishablegoods. (Book III, Rule I, Sec. 7, LC Rules and Regulations)

Rest period of short duration during working hours shall be counted as hoursworked. (Art. 84, Labor Code)

3.13. How is the right to a night shift differential implemented?




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Every employee shall be paid a night shift differential of not less than ten

percent (10%) of his regular wage for each hour of work performed between tenoclock in the evening and six oclock in the morning. (Art. 86, Labor Code)

3.14. How is the right of health personnel to a forty-hour week implemented?

Health personnel in cities and municipalities with a population of at leastone million (1,000,000) or in hospitals and clinics with a bed capacity of at leastone hundred (100) shall hold regular office hours of eight (8) hours a day for five(5) days a week, or a total of forty (40) hours a week exclusive of time for meals,except where the exigencies of the service require that such personnel work for six

(6) days or forty-eight (48) hours, in which case they shall be entitled to anadditional compensation of at least thirty per cent (30%) of their regular wage forwork on the sixth day. For purposes of this Article, health personnel shallinclude: resident physicians, nurses, nutritionists, dietitians, pharmacists, socialworkers, laboratory technicians, paramedical technicians, psychologists, midwives,attendants and all other hospital or clinic personnel. (Art. 83, Labor Code)

With the passage of the Magna Carta of Public Health Workers (RepublicAct 7305), the aforementioned provision of the Labor Code covers only privatehealth personnel.

LAW ON WEEKLY REST PERIODS

3.15. What are the rights of workers under the Law on Weekly Rest Periods?


(1) Right to a weekly rest day;

(2) Right to rest, i.e. right not to be required to work on a rest day (also on

holidays) except in certain emergency cases; and(3) Right to an additional compensation for work on a rest day or on

special holiday work.

3.16. How is the right to a weekly rest day implemented?




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It shall be the duty of every employer, whether operating for profit or not, toprovide each of his employees a rest period of not less than twenty-four (24)consecutive hours after every six (6) consecutive normal work days.

The employer shall determine and schedule the weekly rest day of hisemployees subject to collective bargaining agreement and to such rules andregulations as the Secretary of Labor may provide. However, the employer shallrespect the preference of employees as to their weekly rest day when such

preference is based on religious grounds. (Art. 91, Labor Code)

The preference of the employee as to his weekly day of rest shall berespected by the employer if the same is based on religious grounds. Theemployee shall make known his preference to the employer in writing at leastseven (7) days before the desired effectivity of the initial rest day so preferred.

Where, however, the choice of the employees as to their rest day based onreligious grounds will inevitably result in serious prejudice or obstruction to theoperations of the undertaking and the employer cannot normally be expected toresort to other remedial measures, the employer may so schedule the weekly restday of their choice for at least two (2) days in a month. (Book III, Rule III, Sec. 4,LC Rules and Regulations)

Where the weekly rest is given to all employees simultaneously, theemployer shall make known such rest period by means of a written notice postedconspicuously in the workplace at least one week before it becomes effective.

Where the rest period is not granted to all employees simultaneously andcollectively, the employer shall make known to the employees their respectiveschedules of weekly rest through written notices posted conspicuously in theworkplace at least one week before they become effective. (Book III, Rule III,

Sec. 5, LC Rules and Regulations)

3.17. May an employee be required to work on his weekly rest day?

An employee may not be required to work on his weekly rest day except incertain emergency cases. (Art. 92, Labor Code)




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3.18. When may an employer require his employees to work on a rest day?

The employer may require his employees to work on any day:(a) In case of actual or impending emergencies caused by serious

accident, fire, flood typhoon, earthquake, epidemic or other disaster or calamity toprevent loss of life and property, or imminent danger to public safety;

(b) In cases of urgent work to be performed on the machinery, equipment,or installation, to avoid serious loss which the employer would otherwise suffer;

(c) In the event of abnormal pressures of work due to specialcircumstances, where the employer cannot ordinarily be expected to resort to other

measures;(d) To prevent loss or damage of perishable goods;

(e) Where the nature of the work requires continuous operations and thestoppage of work may result in irreparable injury or loss to the employer; and

(f) Under other circumstances analogous or similar to the foregoing asdetermined by the Secretary of Labor. (Art. 92, Labor Code)

3.19. What is the compensation for work done on a weekly rest day or on a

special holiday?

Where an employee is made or permitted to work on his scheduled rest day,he shall be paid an additional compensation of at least thirty percent (30%) of hisregular wage.

Work performed on any special holiday shall be paid an additionalcompensation of at least thirty percent (30%) of the regular wage of the employee.Where such holiday work falls on the employees scheduled rest day, he shall beentitled to an additional compensation of at least fifty percent (50%) of his regular

wage. Where the collective bargaining agreement or other applicable employmentcontract stipulates the payment of a higher premium pay than that prescribed underthis Article, the employer shall pay such higher rate. (Art. 93, Labor Code)

Nothing in the Rule on Hours of Work in the LC Rules and Regulationsshall justify an employer in reducing the compensation of his employees for theunworked Sundays, holidays, or other rest days which are considered paid off-days




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or holidays by agreement or practice subsisting upon the effectivity of the LaborCode. (Book III, Rule III, Sec. 8, LC Rules and Regulations)

3.20. Is an employee entitled to an additional compensation for work on a

Sunday?

An employee shall be entitled to such additional compensation for workperformed on Sunday only when it is his established rest day.

When the nature of the work the employee is such that he has no regularworkdays and no regular rest days can be scheduled, he shall be paid an additional

compensation of at least thirty percent (30%) of the regular wage work performedon Sunday and holiday. (Book III, Rule I, Sec.8, LC Rules and Regulations)

LAW ON HOLIDAY PAY

3.21. What are the rights of workers under the Law on Holiday Pay?

The rights of workers under the above Law are:

1. Right to holiday pay; and

2. Right to an additional compensation for work on a regular holiday.

3.22. How is the right to holiday pay implemented?

(a) Every worker shall be paid his regular daily wage during regularholidays, except in retail and service establishment regularly employing less than(10) workers;

(b) The employer may require an employee to work on any holiday butsuch employee shall be paid a compensation equivalent to twice his regular rate.

(Art. 94, Labor Code)3.23. What are the guidelines in the computation of holiday pay

Pursuant to the provisions of the Labor Code, as amended in relation to theobservance of declared holidays and in response to the queries received every timea Presidential Proclamation or a law is enacted by Congress which declares certain




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days either as a regular holiday, a special day or a special working holiday, thefollowing guidelines shall be observed by all employers in the private sector1:

1. For regular holidaysas provided for under EO 203 (incorporated in EO292) as amended by RA 91772:

1DOLE MEMORANDUM CIRCULAR NO. 1 series 2004

2 Note Proclamation no.84 s. 2011 signed by President Aquino on TheRationalization on the observation of Holidays in the Philippiunes. The

proclamation was signed by the President. Proclamation 84 s.2011 reads as

follows:

MALACAAN PALACE

MANILA

BY THE PRESIDENT OF THE PHILIPPINES

PROCLAMATION NO. 84

DECLARING THE REGULAR HOLIDAYS, SPECIAL (NON-WORKING) DAYS, AND

SPECIAL HOLIDAY (FOR ALL SCHOOLS) FOR THE YEAR 2011

WHEREAS,Republic Act (RA) No. 9492, dated July 24, 2007, amended Section 26, Chapter 7, Book Iof Executive Order (EO) No. 292, also known as the Administrative Code of 1987, by declaring certain

days (specific or movable) as special or regular holidays;

WHEREAS,RA No. 9492provides that holidays, except those which are religious in nature, are moved

to the nearest Monday unless otherwise modified by law, order or proclamation;

WHEREAS,RA No. 9849provides that the Eidul Adha shall be celebrated as a national holiday;

WHEREAS, the EDSA People Power Revolution, which restored and ushered political, social and

economic reforms in the country, serves as an inspiration to Filipinos everywhere as a nation and as a

people;

NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the powers vested in me by the

Constitution as President of the Philippines, do hereby declare:

SECTION 1.The following regular holidays and special days for the year 2011 shall be observed in the

country:

A. Regular Holidays

New Years Day January 1 (Saturday)

Araw ng Kagitingan April 9 (Saturday)




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New Year's Day - January 1

Maundy Thursday April 21

Good Friday April 22

Labor Day May 1 (Sunday)

Independence Day June 12 (Sunday)

National Heroes Day August 29 (Last Monday of August)

Bonifacio Day November 30 (Wednesday)

Christmas Day December 25 (Sunday)Rizal Day December 30 (Friday)

B. Special (Non-Working) Days

Ninoy Aquino Day August 21 (Sunday)

All Saints Day November 1 (Tuesday)

Last Day of the Year December 31 (Saturday)

C. Special Holiday (for all schools)

EDSA Revolution Anniversary February 25 (Friday)

SECTION 2.The proclamations declaring national holidays for the observance of Eidl Fitr and Eidul

Adhashall hereafter be issued after the approximate dates of the Islamic holidays have been determined in

accordance with the Islamic calendar (Hijra) or the lunar calendar, or upon Islamic astronomical

calculations, whichever is possible or convenient. To this end, the National Commission on Muslim

Filipinos (NCMF) shall inform the Office of the President on which day the holiday shall fall.

SECTION 3. The Department of Labor and Employment (DOLE) shall promulgate the implementing

guidelines for this Proclamation.

SECTION 4.This Proclamation shall take effect immediately.

SECTION 5.This Proclamation shall be published in a newspaper of general circulation.

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the

Philippines to be affixed.

DONEin the City of Manila, this 20thday of December in the year of Our Lord, Two Thousand and Ten.

(Sgd.) BENIGNO S. AQUINO III

By the President:

(Sgd.) PAQUITO N. OCHOA, JR.

Executive Secretary




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Maundy Thursday - Movable Date

Good Friday - Movable Date

Araw ng Kagitingan - April 9

Labor Day - May 1

Independence Day - June 12

National Heroes Day - Last Sunday of August

Bonifacio Day - November 30

Eidul Fitr - Movable Date

Christmas Day - December 25

Rizal Day - December 30

2. the following rules shall apply:a. If it is an employee's regular workday If unworked - 100% If worked

o 1st 8 hours - 200%o excess of 8 hours - plus 30% of hourly rate on said day

b. If it is an employee's rest day If unworked - 100% If worked

o 1st 8 hours - plus 30% of 200%o excess of 8 hours - plus 30% of hourly rate on said day

3. For declared special dayssuch as Special Non-Working Day, SpecialPublic Holiday, Special National Holiday, in addition to the two (2)nationwide special days (November 1, All Saints Day and December 31,Last Day of the Year) listed under EO 203, as amended, the followingrules shall apply:




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If unworked

No pay, unless there is a favorable company policy, practice orcollective bargaining agreement (CBA) granting payment of wageson special days even if unworked.

- If worked

1st 8 hours - plus 30% of the daily rate of 100%

excess of 8 hours - plus 30% of hourly rate on said daya. Falling on the employee's rest day and if worked

1st 8 hours - plus 50% of the daily rate of 100% excess of 8 hours - plus 30% of hourly rate on said day

For those declared as special working holidays, the following rules shallapply:

For work performed, an employee is entitled only to his basic rate. No

premium pay is required since work performed on said days is consideredwork on ordinary working days.

3.24. Who are not entitled to holiday pay?

This benefit of holiday pay applies to all employees except:

1. Government employees, whether employed by the National Government or anyof its political subdivisions, including those employed in government-owned

and/or controlled corporations with original charters or created under special laws;

2. Those of retail and service establishments regularly employing less than ten (10)workers;

3. Househelpers and persons in the personal service of another;

4. Managerial employees, if they meet all of the following




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conditions:

a.) Their primary duty is to manage the establishment in which they areemployed or of a department or subdivision thereof;

b.) They customarily and regularly direct the work of two or moreemployees therein;c.)They have the authority to hire or fire other employees of lower rank; ortheir suggestions and recommendations as to hiring, firing, and promotion,or any other change of status of other employees are given particular weight.

5. Officers or members of a managerial staff, if they perform the following dutiesand responsibilities:

a.) Primarily perform work directly related to management policies of theiremployer;

b.) Customarily and regularly exercise discretion and independent judgment;c.) Regularly and directly assist a proprietor or managerial employee in the

management of the establishment or subdivision thereof in which he orshe is employed; or (b) execute, under general supervision, work alongspecialized or technical lines requiring special training, experience, orknowledge; or

d.) execute, under general supervision, special assignments and tasks; ande.) Do not devote more than twenty percent (20%) of their hours worked ina workweek to activities which are not directly and closely related to the

performance of the work described in paragraphs 5.1, 5.2, and 5.3 above.

6. Field personnel and other employees whose time and performance isunsupervised by the employer, including those who are engaged on task or contract

basis, purely commission basis or those who are paid a fixed amount forperforming work irrespective of the time consumed in the performance thereof.

3.25 What is the effect of absences on the right to holiday pay?

All covered employees shall be entitled to the benefit provided herein whenthey are on leave of absence with pay. Employees who are on leave of absencewithout pay on the day immediately preceding a regular holiday may not be paidthe required holiday pay if he has not worked on such regular holiday.




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Employees shall grant the same percentage of the holiday pay as the benefitgranted by competent authority in the form of employees compensation or social

security payment, whichever is higher, if they are not reporting for work while onsuch benefits.

Where the day immediately preceding the holiday is a non-working day inthe establishment or the scheduled rest day of the employee, he shall not bedeemed to be on leave of absence on that day, in which case he shall be entitled tothe holiday pay if he worked on the day immediately preceding the non-workingday or rest day. (Book III, Rule IV, Sec. 6, LC Rules and Regulations)

Where there are two (2) successive regular holidays, like Holy Thursday andGood Friday, an employee may not be paid for both holidays if he absents himselffrom work on the day immediately preceding the first holiday, unless he works onthe first holiday, in which case he is entitled to his holiday pay on the secondholiday day. (Book III, Rule IV, Sec. 10, LC Rules and Regulations)

3.25. What is the effect of shutdown and temporary cessation of work on

holiday pay?

In cases of temporary or periodic shutdown and temporary cessation of workof an establishment, as when a yearly inventory or when the repair or cleaning ofmachineries and equipment is undertaken, the regular holidays falling within the

period shall be compensated in accordance with Rule on Holidays with Pay in theLabor Code Rules and Regulations.

The regular holiday during the cessation of operation of an enterprise due tobusiness reverses as authorized by the Secretary of Labor may not be paid by theemployer. (Book III, Rule IV, Sec. 7, LC Rules and Regulations)

3.26. Are private school teachers, employees paid by results, seasonal

workers and workers with no regular working days entitled to holiday pay?Private school teachers, including faculty members of colleges and

universities, may not be paid for the regular holidays during semestral vacations.They shall, however, be paid for the regular holidays during Christmas vacation.

Where a covered employee is paid by results or output, such as payment onpiece work, his holiday pay shall not be less than his average daily earning for thelast seven (7) actual working days preceding the regular holiday; Provided,




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however, that in no case shall the holiday pay be less than the applicable statutory

minimum wage rate.

Seasonal workers may not be paid the required holiday pay during off-season when they are not at work.

Workers who have no regular working days shall be entitled to the benefitsprovided in the Rule on Holidays with Pay on the Labor Code Rules andRegulation. (Book III, Rule IV, Sec. 8, LC Rules and Regulations)

3.27. How shall a regular holiday be treated if it falls on an employees rest

day, or on a Sunday?

A regular holiday falling on the employees rest day shall be compensatedaccordingly.

Where a regular holiday falls on a Sunday, the following day shall beconsidered a special holiday for purposes of the Labor Code, unless said day is alsoa regular holiday. (Book III, Rule IV, Sec. 9, LC Rules and Regulations)

LAW ON SERVICE INCENTIVE LEAVES

3.28. How is the right to service incentive leave implemented?

(a) Every employee who has rendered at least one year of service shall beentitled to a yearly service incentive leave of five days with pay.

(b) This provision shall not apply to those who are already enjoying thebenefit herein provided, those enjoying vacation leave with pay of at least fivedays and those employed in establishments regularly employing less than ten

employees or in establishments exempted from granting this benefit by theSecretary of Labor after considering the viability or financial condition of suchestablishment.

(c) The grant of benefit in excess of that provided herein shall not bemade a subject of arbitration or any court of administrative action. (Art. 95, LaborCode)




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3.29. What does the term at least one year of service which is a prerequisite

to the entitlement of service incentive leave, mean?

The term At least one year service shall mean service within 12 months,whether continuous or broken reckoned from the date the employee startedworking, including authorized absences and paid regular holidays unless theworking days in the establishment as a matter of practice or policy, or that

provided in the employment contract, is less than twelve (12) months, in whichcase said period shall be considered as one year. (Book III, Rule V, Sec. 3, LCRules and Regulations)

3.30. Is the service incentive commutable?

The service incentive leave shall be commutable to its money equivalent ifnot used or exhausted at the end of the year. (Book III, Rule V, Sec.5, LC Rules

and Regulations)

LAW ON SERVICE CHARGES

3.31. How is the right to service charges implemented?

All service charges collected by hotels, restaurants and similarestablishments shall be distributed at the rate of eighty-five percent (85%) for allcovered employees and fifteen percent (15%) for management. The share of the

employees shall be equally distributed among them. In case the service charge isabolished, the share of the covered employees shall be considered integrated intheir wages. (Art. 96, Labor Code)

The 15% shall be for disposition by management to answer for losses andbreakages and distribution to employees receiving more than P2,000.00 a month, atthe discretion of the management in the latter case. (Book III, Rule VI, Sec. 3, LCRules and Regulations)




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The shares of the employees referred to above shall be distributed and paidto the employees not less than once every two (2) weeks or twice a month at

intervals not exceeding sixteen (16) days. (Book III, Rule VI, Sec. 4, LC Rulesand Regulations)

In case the service charge is abolished, the share of covered employees shallbe considered integrated in their wages. The basis of the amount to be integratedshall be the average monthly share of each employee for the past twelve (12)months immediately preceding the abolition or withdrawal of such charges. (BookIII, Rule VI, Sec. 5, LC Rules and Regulations)

LAW ON WAGES

4.1. What are the rights of workers under the Law on Wages?


(1) Right to a statutory minimum wage;

(2) Right to a minimum wage duly fixed administratively e.g., by wageorders;

(3) Right to payment of fair and reasonable wage rates when the paymentis by results;

In addition, there are laws on wages not embodied in the Labor Code, i.e.PD No. 525, as amended, and PD No. 851. These laws give these rights to

workers, i.e.: -(1) Right to a cost-of-living allowance;

(2) Right to a 13thmonth pay.

Related to the above rights that help bring about a fair and living wage, theLaw on Wages also provides for the protection of wages to ensure that workersshall fully receive the wages they are entitled to receive.




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4.2. What does wage mean?

Wage paid to any employee shall mean the remuneration or earnings,

however designated, capable of being expressed in terms of money, whether fixedor ascertained on a time, task, piece, or commission basis, or other method ofcalculating the same, which is payable by an employer to an employee under awritten or unwritten contract of employment for work done or to be done, or forservices rendered or to be rendered, and includes the fair and reasonable value, asdetermined by the Secretary of Labor, of board, lodging, or other facilitiescustomarily furnished by the employer to the employee. Fair and reasonable valueshall not include any profit to the employer or to any person affiliated with theemployer. (Art. 97(f), Labor Code)

4.3. What is the concept of a minimum wage? What are the criteria for

minimum wage fixing? Are there situations where it is legal to pay employees

less than the legal minimum wage?

A minimum wage is the lowest wage paid or permitted to be paid; a wagefixed by legal authority or by contract as the least that may be paid either toemployed persons generally or to a particular category of employed persons.

A minimum wage to be established shall be as nearly adequate as iseconomically feasible to maintain the minimum standards of living necessary for

the health, efficiency and general well-being of the employees within theframework of the national economic and social development program. In thedetermination of a minimum wage, the following shall, among other relevantfactors, be considered:

a. Cost of living;b. Comparable wages and other incomes in the economy;c. Fair return of the capital invested; andd. The imperatives of economic and social development. (Art. 123,

Labor Code)

The Secretary of Labor may, to an extent necessary to promote theemployment in severely depressed areas, authorize the payment of sub-minimumwage rates, but in no case lower than fifty percent (50%) of the applicableminimum, by enterprises that may be established in such areas to provideemployment opportunities to the residents therein, subject to such terms andconditions as he may prescribe to insure the protection and welfare of the workers.(Art. 99, Labor Code)




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4.4. What were the statutory minimum wages when the Labor Code took

effect on November 1, 1974. What laws later on increased the statutoryminimum wage?

The minimum wage rates for agricultural and non-agricultural employeeswhen the Code took effect on November 1, 1974 were those prescribed by law onsuch date, i.e. Minimum Wage Law, Rep. Act No. 602, as amended.

Thus, the minimum wage rates for agricultural and non-agriculturalemployees on the effectivity of the Labor Code were as follows:

1. Eight pesos a day for non-agricultural workers;

2. Four pesos and seventy-five centavos for agricultural employees;

3. Six pesos a day for employees of retail or service enterprises that donot regularly employ more than five employees;

4. Eight pesos a day for employees of the National government and allgovernment-owned and/or controlled corporations;

5. Five pesos a day for employees of provinces, municipalities and citiesor the minimum wages being paid to them at the time of the approval of RA 6129

on 17 June 1970. (Book II, Rule VII, Sec. 1, LC Rules and Regulations)The above minimum wage rates were later on increased by PD No. 928

(May 1, 1976), as amended by PD Nos. 1389 (May 29, 1978), 1614 (March 14,1979), 1713 (August 13, 1980), 1715 (December 4, 1980), also PD No. 1364 (May1, 1978) and Wage Order Nos. 2 (July 6, 1983), 3 (November 7, 1983), 4 (May 1,1984), 5 and 6 (November 1, 1984). Exec. Order No. 178 (June 1, 1987) increasedthe statutory daily minimum wages after integrating the cost of living allowanceunder Wage Orders Nos. 1, 2, 3, 4, 5 and 6 into the basic pay of all coveredworkers.

4.5. How are wages currently determined?

Republic Act No. 6727 (also known as the Wage Rationalization Act)mandates the fixing of the minimum wages applicable to different industrialsectors, namely, non-agriculture, agricultureplantation, and nonplantation,cottage/handicraft, and retail/service, depending on the number of workers orcapitalization or annual gross sales in some sectors.




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Republic Act 6727 rationalized wage determination by establishing themechanism and proper standards through the creation of Regional Tripartite Wages

and Productivity Boards (RTWPBs) authorized to determine the daily minimumwage rates in the following different regions based on established criteria:

National Capital Region (NCR) or Metro ManilaCordillera Administrative Region (CAR)Region 1 - Northern Luzon or IlocosRegion 2 - Cagayan ValleyRegion 3 - Central LuzonRegion 4-A - CALABARZON (Cavite, Laguna, Batangas,Rizal, Quezon)Region 4-B - MIMAROPA (Mindoro, Marinduque, Romblon,Palawan)Region 5 - BicolRegion 6 - Western VisayasRegion 7 - Central VisayasRegion 8 - Eastern VisayasRegion 9 - Western Mindanao or Zamboanga PeninsulaRegion 10 - Northern MindanaoRegion 11 - Southern Mindanao or Davao

Region 12 - Central Mindanao or SOCCSKSARGEN (SouthCotabato, North Cotabato, Sultan Kudarat,- Sarangani, General Santos)Region 13 - CaragaAutonomous Region in Muslim Mindanao (ARMM)

The Regional Wage Orders prescribe the daily minimum wage rates perindustry per locality within the region and in some instances depending on thenumber of workers and the capitalization of enterprises. The Wage Orders likewise

provide the basis and procedure for application for exemption from compliancetherefrom. Some Wage Orders grant allowances instead of wage increases.

1.6. What is the coverage of wage orders ?

The wage increases prescribed under Wage Orders apply to all private sectorworkers and employees receiving the daily minimum wage rates or those receivingup to a certain daily wage ceiling, where applicable, regardless of their position,




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designation, or status, and irrespective of the method by which their wages arepaid, except the following:

1. Househelpers, including family drivers and workers in the personal service ofanother whose conditions of work are prescribed in Republic Act No. 7655.

2. Workers of registered Barangay Micro Business Enterprises (BMBEs) withCertificates of Authority issued by the Office of the Municipal or City Treasurer.

The basis of the minimum wage rates prescribed by law shall be the normalworking hours of eight (8) hours a day.

4.7 What are now the daily minimum wage rates in the private sector in the

National Capital Region ?

DAILY MINIMUM WAGE National Capital RegionAs of January 2010

Cities/MunicipalityCaloocan, Las Pias, Makati, Malabon,Mandaluyong, Manila, Marikina,Muntinlupa, Navotas, Paranaque, Pasay,Pasig, Quezon, San Juan, Taguig,Valenzuela, and PaterosSector/Industry Minimum

Wage underW.O. No.NCR-13a

Basic Wageunder W.O.

No. NCR-14b

COLAunder

W.O. No.NCR-14c

Total

Non-agriculture 362.00 15.00 5.00 382.00

Agriculture Plantation 325.00 15.00 5.00 345.00

Nonplantation 325.00 15.00 5.00 345.00

Private HospitalsWith bed capacity of 100 or less 325.00 15.00 5.00 345.00

Retail/Service EstablishmentsEmploying 15 workers or less 325.00 15.00 5.00 345.00

Manufacturing EstablishmentsEmploying less than 10 workers 325.00 15.00 5.00 345.00

a Effectivity date is on 28 August 2007. b Effectivity date is on 14 June 2008. c Integration of P5.00COLA into the basic wage on 28 August 2008.




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4.8 Who are monthly paid and daily paid employees?

Monthly-paid employees are those who are paid every day of the month,including unworked rest days, special days, and regular holidays.

Daily-paid employees are those who are paid on the days they actuallyworked and on unworked regular holidays.

4.9 What is the rule on double indemnity?

Any person, corporation, trust, firm, partnership, association or entity which

refuses or fails to pay any of the prescribed increases or adjustments in the wagerates made in accordance with this Act shall be punished by a fine not less thanTwenty-five thousand pesos (P25,000) nor more than One hundred thousand pesos(P100,000) or imprisonment of not less than two (2) years nor more than four (4)years, or both such fine and imprisonment at the discretion of the court:Provided,That any person convicted under this Act shall not be entitled to the benefits

provided for under the Probation Law.

The employer concerned shall be ordered to pay an amount equivalent to

double the unpaid benefits owing to the employees: Provided, That payment ofindemnity shall not absolve the employer from the criminal liability imposableunder this Act.

If the violation is committed by a corporation, trust or firm, partnership,association or any other entity the penalty of imprisonment shall be imposed uponthe entity's responsible officers, including, but not limited to, the president, vice-

president, chief executive officer, general manager, managing director or partner.(Section 1, Republic Act 8188 Double Indemnity Act AN ACT INCREASINGTHE PENALTY AND INCREASING DOUBLE INDEMNITY FOR

VIOLATION OF THE PRESCRIBED INCREASES OR ADJUSTMENT IN

THE WAGE RATES, AMENDING FOR THE PURPOSE SECTION

TWELVE OF REPUBLIC ACT NUMBERED SIXTY-SEVEN HUNDRED

TWENTY-SEVEN, OTHERWISE KNOWN AS THE WAGE

RATIONALIZATION ACT)




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4.10 Who are covered employers under PD No. 851 entitled to month pay?

On August 13, 1986, President Corazon C. Aquino issued MemorandumOrder No. 28 which provides as follows:

Section 1 of Presidential Decree No. 851 is hereby modified to the extentthat all employers are hereby required to pay all their rank-and-file employees a13thmonth pay not later than December 24 of every year.

Before its modification by the aforecited Memorandum Order, PD No. 851xcludes from entitlement to the 13th month pay those employees who werereceiving a basic salary of more than P1,000.00 a month. With the removal of the

salary ceiling of P1,000.00, all rank and file employees are now entitled to a 13thmonth pay regardless of the amount of the basic salary that they receive in amonth, if their employers are not otherwise exempted from the application of PD

No. 851. Such employees are entitled to the benefit regardless of their designationor employment status, and irrespective of the method by which their wages are

paid, provided that they have worked for at least one (1) month during a calendaryear. (Guidelines on the implementation of the modified 13thMonth Pay, E.B. No.86-12, Nov. 24, 1986)

4.10 Are employees paid by results, those with multiple employers, private

school teachers and resigned or separated employees entitled to the 13 th

month pay?

Employees who are paid on piece work basis are by law entitled to the 13 th

month pay.

Employees who are paid a fixed or guaranteed wage plus commission arealso entitled to the mandated 13thmonth pay, based on their total earnings duringthe calendar year, i.e., on both their fixed or guaranteed wage and commission.

Government employees working part time in a private enterprise, includingprivate educational institutions, as well as employees working in two or moreprivate firms, whether on full or part-time basis, are entitled to the required 13th

month pay, regardless of their total earnings from each or all their employers.

Private school teachers, including faculty members of universities andcolleges, are entitled to the required 13thmonth pay, regardless of the number ofmonths they teach or are paid within a year, if they have rendered service at leastone (1) month within a year.




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An employee who has resigned or whose services were terminated at anytime before the time for payment of the 13thmonth pay is entitled to this monetary

benefits in proportion to the length of time he worked during the year, reckonedfrom the time he started working during the calendar year up to the time of hisresignation or termination from the service. Thus, if he worked only from Januaryup to September, his proportionate 13thmonth pay should be equivalent of 1/12 ofthe total basic salary he earned during that period.

The payment of the 13thmonth pay may be demanded by the employee uponthe cessation of employer-employee relationship. This is consistent with the

principle of equity that as the employer can require the employee to clear himself

of all liabilities and property accountability, so can the employee demand thepayment of all benefits due him upon the termination of the relationship.(Guidelines on the implementation of the Modified 13thMonth Pay Law, E.B. No.86-12, Nov. 24, 1986)

4.11. How is the 13th

month pay computed?

The minimum 13

th

month pay required by PD No. 851 shall not be less thanone twelfth (1/12) of the basic salary of an employee within a calendar year. Forthe year 1986, the computation of 13thMonth Pay shall be based on the basic payearned by the employee from January up to December of the said year.

The basic salary of an employee for the purpose of computing the 13thmonthpay shall include all remunerations or earnings paid by his employer for servicesrendered but does not include allowances and monetary benefits which are notconsidered or integrated as part of the regular or basic salary, such as the cashequivalent of unused vacation and sick leave credits, overtime, premium, night

differentials and holiday pay, and cost-of-living allowances. However, thesesalary-related benefits should be included as part of the basic salary in thecomputation of the 13th month pay if by individual or collective agreement,company practices or policy, the same are treated as part of the basic salary of theemployees. (Guidelines on the implementation of the Modified 13th Month PayLaw, E.B. No. 86-12, Nov. 24, 1986)

4.12. When is the 13th month pay to be paid?




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The required 13th month pay is to be paid not later than December 24 ofeach year. An employer, however, may give to his employees one half (1/2) of therequired 13th month pay before the opening of the regular school year and theother half on or before the 24th of December of every year. The frequency of

payment of this monetary benefit may be subject of agreement between theemployer and the recognized collective bargaining agent of the employees.(Guidelines on the implementation of the Modified 13th Month Pay Law, E.B. No.86-12, Nov. 24, 1986)

4.13. Is the 13th month pay to be credited as part of regular wage of

employees?

The mandated 13th month pay need not be credited as part of regular wageof employees for purposes of determining overtime and premium pays, fringe

benefits as well as contributions to the state insurance fund, Social Security,Medicare and private retirement plans. (Guidelines on the implementation of theModified 13th Month Pay Law, E.B. No. 86-12, Nov. 24, 1986)

4.14. How does the Law on Wages in the Labor Code provide for the

protection of wages to ensure that workers shall fully receive the wages they

are entitled to receive?

The law provides for the protection of wages by recognizing these rights:1. The right to be paid wages in legal tender at certain regular intervals

and at or near the place of undertaking.

2. The right to be paid directly.

3. In case of a worker who works for a contractor who is in turnperforming work for another, the right of said worker to claim unpaidwages not only against his direct employer (the contractor) but againsthis indirect employer (the person for whom the contractor has

performed some work).

4. The right to enjoy first preference as regard unpaid wages in case ofbankruptcy.

5. In connection with an action to recover unpaid wages, the right not topay attorneys fees exceeding ten percent (10%) of the amount ofwages recovered.




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6. The right to dispose of wages without any limitation or interferencefrom the employer.

7. The right of a worker against any deduction from his wage, againstrequirement for deposits for loss or damage, except as duly authorizedagainst withholding and kick backs and against deduction to ensureemployment.

8. In connection with a worker who has filed any complaint against hisemployer, or has testified or is about to testify in such proceedings,the right of said worker against any retaliatory measures that anemployer may make against the worker.

9. The right against the elimination or diminution of benefits enjoyed atthe time of the promulgation of the Labor Code.

4.15. To whom shall wages be paid?

Wages shall be paid directly to the workers to whom they are due, except:

(a) In cases of force majeure rendering such payment impossible or underother special circumstances to be determined by the Secretary of Labor inappropriate regulations, in which case the worker may be paid through another

person under written authority given by the worker for the purpose; or

(b) Where the worker has died, in which case the employer may pay the

wages of the deceased worker to the heirs of the latter without the necessity ofinterstate proceedings. The claimants, if they are all of age, shall execute anaffidavit attesting to their relationship to the deceased and the fact that they are hisheirs, to the exclusion of all other persons. If any of the heirs is a minor, theaffidavit shall be executed on his behalf by his natural guardian or next of kin. Theaffidavit shall be presented to the employer who shall make payment through theSecretary of Labor or his representative. The representative of the Secretary ofLabor shall act as referee in dividing the amount paid among the heirs. The




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payment of wages under this Article shall absolve the employer of any furtherliability with respect to the amount paid. (Art. 105, Labor Code)

4.16. Where shall wages be paid?

Payment of wages shall be made at or near the place of undertaking, exceptas otherwise provided by such regulations as the Secretary of Labor may prescribeunder conditions to ensure greater protection of wages. (Art. 104, Labor Code)

Section 7 of Republic Act 6725 allows employers to pay wages throughbanks upon permission of the majority of the employees.

4.17. In what form shall an employer pay the wages of an employee?

No employer shall pay the wages of an employee by means of promissorynotes, vouchers, coupons, tokens, tickets, chits or any object other than legaltender, even when expressly requested by the employee.

Payment of wages by check or money order shall be allowed when suchmanner of payment is customary on the date of effectivity of this Code, or isnecessary because of special circumstances as specified in appropriate regulationsto be issued by the Secretary of Labor or is stipulated in a collective bargainingagreement. (Art. 102, Labor Code)

4.18. How often shall wages be paid?

Wages shall be paid at least once every two (2) weeks or twice a month atintervals not exceeding sixteen (16) days. If on account of force majeure orcircumstances beyond the employers control, payment of wages on or within thetime herein provided cannot be made, the employer shall pay the wagesimmediately after such force majeure or circumstances have ceased. No employershall make payment with less frequency than once a month.

The payment of wages of employees engaged to perform a task whichcannot be completed in two (2) weeks shall be subject to the following conditions,in the absence of a collective bargaining agreement or arbitration award:

(1) That payments are made at intervals not exceeding sixteen (16) days,in proportion to the amount of work completed; and

(2) That final settlement is made upon completion of the work. (Art. 103,Labor Code)




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4.19. What are some prohibitions imposed by the Labor Code regarding

wages?

Some prohibitions imposed by the Labor Code regarding wages are:

1. Re: disposition of wages, no employer shall limit or otherwiseinterfere with the freedom of any employee to dispose of his wages. He shall notin any manner force, compel, or oblige his employees to purchase merchandisefrom him. (Art. 112, Labor Code)

2. Re: Wage Deduction; No employer, in his own behalf or in behalfof any person, shall make any deduction from the wages of his employees, except:

(a) In cases where the worker is insured with his consent by theemployer, and the deduction is to recompense the employer for the amount paid byhim as premium on the insurance;

(b) For union dues, in cases where the right of the worker or his union tocheck-off has been recognized by the employer or authorized in writing by theindividual worker concerned; and

(c) In cases where the employer is authorized by law or regulations issuedby the Secretary of Labor. (Art. 113, Labor Code)

3. Re: Deposits for loss or damages; No employer shall require hisworker to make deposits from which deductions shall be made for thereimbursement of loss or damage to tools, materials, or equipment supplied by theemployer, except when the employer is engaged in such trades, occupations or

business where the practice of making deductions or requiring deposits is arecognized one, or is necessary or desirable as determined by the Secretary ofLabor in appropriate rules and regulations. (Art. 114, Labor Code)

Further to the above, no deduction from the deposits of an employee for theactual amount of the loss or damage shall be made unless the employee has beenheard thereon, and his responsibility has been clearly shown. (Art. 115, LaborCode)

4. Re: Withholding of wages and kickbacks; It shall be unlawful forany person directly or indirectly to withhold any amount from the wages of aworker or induce him to give up any part of his wages by force, stealth,intimidation, threat or dismissal or by any other means whatsoever without theworkers consent. (Art. 116, Labor Code)




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5. Re: Deduction to ensure employment; It shall be unlawful to makeany deduction from the wages of any employee for the benefit of the employer or

his representative or intermediary as consideration of a promise of employment orretention in employment. (Art. 117, Labor Code)

6. Re: Retaliatory measures; It shall be unlawful for an employer torefuse to pay or reduce the wages and benefits, discharge or in any mannerdiscriminate against any employee who has filed any complaint or instituted any

proceeding under the Title of the Labor Code on Wages or has testified or is aboutto testify in such proceedings. (Art. 118, Labor Code)

7. Re: False reporting; It shall be unlawful for any person to make any

statement, report, or record filed or kept pursuant to the provisions of the LaborCode knowing such statement, report or record to be false in any material respect.(Art. 119, Labor Code)

4.20. What are the Labor Code provisions on the obligations of a direct

employer, indirect employer, contractor and subcontractor re: the payment

of wages to the employees or for any violation of any provision of the Labor

Code?

As to contractors and sub-contractors, the Labor Code has this provision:

Whenever an employer enters into a contract with another person for theperformance of the formers work, the employees of the contractor and of thelatters subcontractor, if any, shall be paid in accordance with the provisions of thisCode.

In the event that the contractor or subcontractor fails to pay the wages of hisemployees in accordance with this Code, the employer shall be jointly andseverally liable with his contractor or subcontractor to such employees to the




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extent of the work performed under the contract, in the same manner and extent

that he is liable to employees directly employed by him.The Secretary of Labor may, by appropriate regulations, restrict or prohibit

the contracting out of labor to protect the rights of workers established under thisCode. In so prohibiting or restricting, he may make appropriate distinctions

between labor-only contracting and job contracting as well as differentiationswithin these types of contracting and determine who among the parties involvedshall be considered the employer for purposes of this Code, to prevent anyviolation or circumvention of any provision of this Code.

There is labor-only contracting where the person supplying workers to anemployer does not have substantial capital or investment in the form of tools,equipment, machineries, work premises, among others, and the workers recruitedand placed by such person are performing activities which are directly related tothe principal business of such employer. In such cases, the person or intermediaryshall be considered merely as an agent of the employer who shall be responsible tothe workers in the same manner and extent as if the latter were directly employed

by him. (Art. 106, Labor Code)

As regards an indirect employer, the Labor Code has this provision: Theprovisions of Art. 106 of the Labor Code on contractors and subcontractors shalllikewise apply to any person, partnership, association or corporation which, not

being an employer, contracts with an independent contractor for the performanceof any work, task, job or project. (Art. 107, Labor Code)

Re: Potsing of bond, the Labor Code provides: An employer or indirectemployer may require the contractor or subcontractor to furnish a bond equal to thecost of labor under contract, on condition that the bond will answer for the wagesdue the employees should the contractor or subcontractor, as the case may be, failto pay the same. (Art. 108, Labor Code)

Re: The solidary liability of the employer, indirect employer, contractor orsubcontractor, the Labor Code provides: The provisions of existing laws to thecontrary notwithstanding, every employer or indirect employer shall be heldresponsible with his contractor or subcontractor for any violation of any provisionof this Code. For purposes of determining the extent of their civil liability underthe Chapter on Payment of Wages in The Labor Code, they shall be considered asdirect employers. (Art. 109, Labor Code)




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4.21. What kind of preference does a worker enjoy in the event of bankruptcy

or liquidation of an employers business?

In the event of bankruptcy or liquidation of an employers business, hisworkers shall enjoy first preference as regards their unpaid wages and othermonetary claims, any provision of law to the contrary notwithstanding. Suchunpaid wages and monetary claims shall be paid in full before the claims of theGovernment and other creditors may be paid. (Art. 110, Labor Code, as amended

by Rep. Act No. 6715)

4.22. What attorneys fees may be assessed, demanded or accepted, in

proceedings for the recovery of wages?

In cases of unlawful withholding of wages, the culpable party may beassessed attorneys fees equivalent to ten percent (10%) of the amount of wagesrecovered.

It shall be unlawful for any person to demand or accept, in any judicial oradministrative proceedings for the recovery of the wages, attorneys fees, whichexceed ten percent (10%) of the amount of wages recovered. (Art. 111, LaborCode)

LAWS ON WORKING CONDITIONS FOR SPECIAL GROUPS OF

EMPLOYEES

5.1. In the Labor Code, there are Laws for Working Conditions for special

groups of employees. What are these special groups of employees?The special groups of employees for whom there are laws for their working

conditions are:

1. Women;2. Minors;3. Househelpers; and4. Industrial Homeworkers.




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LAW ON EMPLOYMENT OF WOMEN

5.2. The 1987 Constitution (in Art. XIII, Sec. 14) mandates that The State

shall protect working women by providing safe and healthful working

conditions, taking into account their maternal function, and such facilities and

opportunities that will enhance their welfare and enable them to realize their

full potential in the service of the nation. How is this mandate implemented

by the Law on Employment of Women?

In implementing this constitutional mandate the Law on Employment ofWomen has provisions on:

1. Night work prohibition on working women;2. Facilities for working women;3. Family planning services; and4. Prohibition of discrimination against working women.

There are also provisions that make certain acts against working womenunlawful.

The Labor Code also provides for classification of certain women workers.

There are also other statutory benefits that certain women may be entitled to,particularly those who are victims of violence against women and children asdefined under Republic Act 9262.

Private sector women employees who are victims as defined in RA 9262shall be entitled to the paid leave benefit under such terms and conditions providedherein. The leave benefit shall cover the days that the woman employee has toattend to medical and legal concerns.

To be entitled to the leave benefit, the only requirement is for the victim-employee to present to her employer a certification from the barangay chairman(Punong Barangay) or barangay councilor (barangay kagawad) or prosecutor or




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the Clerk of Court, as the case may be, that an action relative to the matter ispending.

In addition to other paid leaves under existing labor laws, company policies,and/or collective bargaining agreements, the qualified victim-employee shall beentitled to a leave of up to ten (10) days with full pay, consisting of basic salaryand mandatory allowances fixed by the Regional Wage Board, if any. The saidleave shall be extended when the need arises, as specified in the protection orderissued by the barangay or the court.

The usage of the ten-day leave shall be at the option of the womanemployee. In the event that the leave benefit is not availed of, it shall not be

convertible into cash and shall not be cumulative.

5.3. How is the night work prohibition on working women implemented?

No woman, regardless of age, shall be employed or permitted or suffered towork, with or without compensation:

(a) In any industrial undertaking or branch thereof between ten oclock atnight and six oclock in the morning of the following day; or

(b) In any commercial or non-industrial undertaking or branch thereof,other than agricultural, between midnight and six oclock in the morning of thefollowing day; or

(c) In any agricultural undertaking at nighttime unless she is given aperiod of rest not less than nine (9) consecutive hours. (Art. 130, Labor Code)

The above prohibitions, however, shall not apply in any of the followingcases:

(a) In cases of actual or impending emergencies caused by serious

accident, fire, flood, typhoon, earthquake, epidemic or other disasters or calamity,to prevent loss of life or property, or in cases of force majeure or imminent dangerto public safety;

(b) In cases of urgent work to be performed on machineries, equipment orinstallation, to avoid serious loss which the employer would otherwise suffer;

(c) Where the work is necessary to prevent serious loss of perishablegoods;




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(d) Where the woman employee holds a responsible position ofmanagerial or technical nature, or where the woman employee has been engaged to

provide health and welfare service;

(e) Where the nature of the work requires the manual skill and dexterityof women workers and the same cannot be performed with equal efficiency bymale workers;

(f) Where the woman employees are immediate members of the familyoperating the establishment or undertaking; and

(g) Under other analogous cases exempted by the Secretary of Labor inappropriate regulations. (Art. 131, Labor Code)

5.4. What standards and facilities shall be established for working women?

The Secretary of Labor shall establish standards that will insure thesafety and health of women employees. In appropriate cases, he shall, byregulations, require any employer to:

(a) Provide seats proper for women and permit them to use such seatswhen they are free from working and during working hours, provided they can

perform their duties in this position without detriment to efficiency;

(b) To establish separate toilet rooms and lavatories for men and womenand provide at least a dressing room for women;

(c) To establish a nursery in a workplace for the benefit of the womenemployees therein; and

(d) to determine appropriate minimum age and other standards forretirement or termination in special occupations such as those of flight attendantsand the like. (Art. 132, Labor Code)

5.5. What are the Labor Code provisions on family planning?(a) Establishments which are required by law to maintain a clinic or

infirmary shall provide free family planning services to their employees whichshall include, but not limited to, the application or use of contraceptive pills andintrauterine devices.

(b) In coordination with other agencies of the Government engaged in thepromotion of family planning, the Department of Labor shall develop and




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prescribe incentive bonus schemes to encourage family planning among femaleworkers in any establishment or enterprise. (Art. 134, Labor Code)

5.6. How is the prohibition of discrimination against working women

implemented?

It shall be unlawful for any employer to discriminate against any womanemployee with respect to terms and conditions of employment solely on account ofher sex.

The following are acts of discrimination:

a. Payment of a lesser compensation, including wage, salary or other form ofremuneration and fringe benefits, to a female employees as against a maleemployee, for work of equal value; and

b. Favoring a male employee over a female employee with respect topromotion, training opportunities, study and scholarship grants solely onaccount of their sexes.

Criminal liability for the willful commission of any unlawful act as providedin this Article or any violation of the rules and regulations issued pursuant toSection 2 hereof shall be penalized as provided in Articles 288 and 289 of thisCode: Provided, That the institution of any criminal action under this provisionshall not bar the aggrieved employee from filing an entirely separate and distinctaction for money claims, which may include claims for damages and otheraffirmative reliefs. The actions hereby authorized shall proceed independently ofeach other. ( Article 135, Labor Code as amended by Republic Act No. 6725, May12, 1989)

It shall be unlawful for an employer to require as a condition of employment

or continuation of employment that a woman employee shall not get married, or tostipulate expressly or tacitly that upon getting married, a woman employee shall bedeemed resigned or separated, or to actually dismiss, discharge, discriminate orotherwise prejudice a woman employee merely by reason of her marriage. (Article136, Labor Code)

5.7. To protect working women, the Labor Code prohibits an employer

form doing certain acts. What are these prohibited acts?




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It shall be unlawful for any employer:

(1) To deny any woman employee the benefits provided for in the

Chapter on Employment of Women in the Labor Code or to discharge any womanemployed by him for the purpose of preventing her from enjoying any of the

benefits provided under the Code;

(2) To discharge such woman on account of her pregnancy, or while onleave or in confinement due to her pregnancy; or

(3) To discharge or refuse admission of such woman upon returning toher work for fear that she may again be pregnant. (Art. 137, Labor Code)

5.8. How are certain women workers classified under the Labor Code?Any woman who is permitted or suffered to work, with or without

compensation, in any night club, cocktail lounge, massage clinic, bar or similarestablishment, under the effective control or supervision of the employer for asubstantial period of time as determined by the Secretary of Labor, shall beconsidered as an employee of such establishment for purposes of labor and sociallegislation. (Art. 138, Labor Code)

LAW ON THE EMPLOYMENT OF MINORS

5.9. How does the Law on Employment of Minors protect minors who are

employed?

The law protects minors who are employed by (1) providing for a minimumemployable age and (2) prohibiting child discrimination.

(a) Thus, No child below fifteen (15) years of age shall be employed,except when he works directly under the sole responsibility of his parents orguardians, and his employment does not in any way interfere with his schooling.

(b) Any person between fifteen (15) and eighteen (18) years of age maybe employed for such number of hours and such periods of the day as determinedby the Secretary of Labor in appropriate regulations.

(c) The foregoing provisions shall in no case allow the employment of aperson below eighteen (18) years of age in an undertaking which is hazardous ordeleterious in nature as determined by the Secretary of Labor. (Art. 139, LaborCode)




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Re: prohibition against child discrimination; It is provided that no employer

shall discriminate against any person in respect to terms and conditions ofemployment on account of his age. (Art. 140, Labor Code)

LAW ON THE EMPLOYMENT OF HOUSEHELPERS

5.10. Who are househelpers?

Househelpers are those engaged in the domestic or household service.

Domestic or household service shall mean services in the employers homewhich is usually necessary or desirable for the maintenance and enjoyment thereof

and includes ministering to the personal comfort and convenience of the membersof the employers household, including services of the family drivers. (Art. 141,Labor Code)

5.11. What are the rights of househelpers under the Labor Code?

The rights of househelpers under the Labor Code includes:

1. The right to a contract of domestic service that shall not last for morethan two years;

2. The right to a minimum wage;

3. The right to an opportunity for education;

4. The right to just and humane treatment;

5. The right to free board, lodging and medical attendance;

6. The right to an indemnity for unjust termination of services; and

7. The right to an employment certification.

LAWS ON TERMINATION AND RETIREMENT

LAW ON TERMINATION OF EMPLOYMENT

16.1 The Constitution of the Philippines in Art. XIII, Sec. 3 provides,

among others, that workers shall be entitled to security of tenure. What is

security of tenure? How is this right to security of tenure implemented?




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The constitutional right to security of tenure is implemented, as regards thoseemployed in the private sector, by Title I, Book Six of the Labor Code which deals

with the Termination of Employment. The key Article of this Title, namely,Article 279 provides:

In cases of regular employment, the employer shall not terminate the servicesof an employee except for a just cause or when authorized by this Title onTermination of Employment in the Labor Code. An employee who is unjustlydismissed from work shall be entitled to reinstatement without loss of seniorityrights and other privileges and his full backwages, inclusive of allowances, and tohis other benefits or their monetary equivalent computed from the time his

compensation was withheld from him up to the time of his actual reinstatement.

Analyzing the above legal provision, it is clear that an employees right tosecurity of tenure is recognized and guaranteed when the employer is prohibitedfrom terminating the services of an employee except for a just cause whenotherwise authorized by law.

16.2 Are employees of all kinds of establishments or undertakings

covered by the provision of the Labor Code implementing the right to security

of tenure?

The provisions of the Title on Termination of Employment in the Labor Codeshall apply to all establishments or undertakings whether for profit or not.(Art.278, Labor Code)

16.3 It is in cases of regular employment that employees are entitled tosecurity of tenure. When is there regular employment as differentiated from

casual employment?

The provisions of written agreement to the contrary notwithstanding andregardless of oral agreement of the parties, an employment shall be deemed to beregular where the employee has been engaged to perform activities which areusually necessary or desirable in the usual business or trade of the employer,




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except where the employment has been fixed for a specific project or undertakingthe completion or termination of which has been determined at the time of the

engagement of the employee or where the work or services to be performed isseasonal in nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if i

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