The Essentials of HR and Labor Law. July 24, 2014. Philippines

Atty. Apollo X.C.S. Sangalang

PoL

Business Lawyer & Legal Coach

Dionarto Q. Noblejas -versus-

Italian Maritime Academy Phils., Inc., Capt. Nicolo S. Terrei, Raceli B.

Fernandez, and Ma. Teresa R. Mendoza G.R. No. 207888

June 9, 2014 Supreme Court of the Philippines

Philippine Spring Water Resources Inc., and Danilo Y. Lua

-versus- Court of Appeals and

Juvenstein B. Mahilum G.R. No. 205278 June 11, 2014

Supreme Court of the Philippines

Takata (Philippines) Corporation -versus-

Bureau of Labor Relations and Samahang Lakas Manggagawa ng Takata

(SALAMAT) G.R. No. 196276


Disclaimers

• No lawyer-client relationship.

• Consult your own legal counsel.

• Legal opinions differ.

• Respect the sub judice rule.

• Avoid conflict of interest.

This seminar is INTERACTIVE

LABOR LAW MADE EASY 1. Learn something new DAILY

about Labor Law. 2. Links to RESOURCES, SITES,

and EVENTS. 3. Quick consultation for FREE

(thru private message).

LABOR LAW MADE EASY (a Facebook page) https://www.facebook.com/legalcoach

LIKE COMMENT

SHARE TAG

Evolution of Management Prerogative

Slavery

Serfdom Employment

Evolution of Ownership

Slavery

Labor

Serfdom

Land

Employment

Capital

Law on Ownership

• “The owner has the right to enjoy and dispose of a thing, without other limitations other than those established by law.”

• (Art. 428, Civil Code).

Evolution of Labor Law

Slavery

Tribal

Serfdom

Feudal

Employment

Contractual

Law on Contracts “The contracting parties may

establish such stipulations, clauses, terms and conditions as may be deemed convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.”

(Art. 1306, Civil Code)

Did you know that…?

Evolution of HR

Slavery

Masters

Serfdom

Lords

Employment

Managers

Employer Power Equation

Ownership Contracts Power

Employer Power! “The State recognizes the indispensable role

of the private sector, encourages private enterprises, and provides incentives to needed investments.”

(Sec. 20, Art. II, Constitution)

“The State…x x x… recognizing the right of enterprises (1) to reasonable returns on investments, and (2) to expansion and growth.” (Sec. 3, Art. XIII, Constitution)

Management Prerogative 1. Right to hire;

2. Right to fire;

3. Right to fix compensation & benefits; and

4. Right to control.

What’s the problem?

What’s the problem?

Limitation No. 1

• Article 291 paragraph 2, Labor Code • (Formerly Article 277)

Limitation No. 2

• Article 4, Labor Code

Full Protection Equation

Burden of Proof

All Doubts E.A.P.G.


Pre-Employment

Employment

Post Employment

Courtship + Engagement

Marriage

Separation + Annulment

Placement

Selection

Recruitment

Marriage

Engagement

Courtship

Job Analysis

Job Description

Advertise Vacancies

Receive Job Applications

Job Interview

Background Checks Testing

Short-Listing

Job Offer & Acceptance

Happy Ending

• Golden Anniversary

Tragic Ending

• Separation • Law suits

MARRIAGE

Happy Ending

• Retirement • Resignation

Tragic Ending

• Termination • Labor case • Other law suits

EMPLOYMENT

It all starts with a…?


Employee • Labor Law • Control

Independent Contractor

• Civil Law • No Control

Hiring Process

Labor Law

Control

Labor Law 1. Full protection 2. Living wage 3. Humane conditions of work 4. Security of tenure 5. Participation in policy and decision-making 6. Just share in the fruits of production

1. Self-organization and collective bargaining; 2. Freedom of expression; and 3. Strike and other peaceful concerted activities

Monetary Benefits Minimum Wage Holiday Pay

Premium Pay Overtime Pay

Night Shift Differential Service Charges

Service Incentive Leave Maternity Leave

Paternity Leave Solo Parents Leave

VAWC Leave Special Leave for Women

13th Month Pay Separation Pay

Retirement Pay Compensation Benefit* (ECC)

PhilHEALTH Benefit* Social Security Benefit*

Pag-IBIG Benefit*

2014 Handbook

Non-Diminution of Benefits

What’s Control?

End

Means

Control

Test of Employment

Hire Fire

Pay* Control

4-Fold Test

Control Test • The power to determine the end

results and the means of doing the work is CONTROL.

• Only an employer has the power of control over his employees.

• The power of control need not be actually exercised.

Non-employment Options Independent Contractors Job Contractors

Consultants Freelancers

Agents Industrial Partners

Corporate Officers Cooperative Members

Volunteers Interns


Job Analysis

Job Description

Advertise Vacancies

Receive Job Applications

Job Interview

Background Checks Testing

Short-Listing

Job Offer & Acceptance

Types of Employment Private Sector Government

Regular (Nature) Casual

Regular (Term) Non-Regular

Rank-and-file Manager & Supervisor

Time-based Results-based

Private Sector Government

Labor Code and other labor laws

Civil Service Law

Department of Labor and Employment

Civil Service Commission

CBA + Strike CNA + No Strike

Labor Standards Exempted from Labor Standards

Regular Casual

Work is “Usually Necessary or Desirable in the Usual Business or Trade of the Employer”

Work is NOT “Usually Necessary or Desirable in the Usual Business or Trade of the Employer”

Security of Tenure No Security of Tenure

What’s Security of Tenure?

What’s Just Cause? 1. Serious misconduct; 2. Willful disobedience (or insubordination); 3. Gross and habitual neglect of duties; 4. Fraud; 5. Willful breach of trust; and 6. Crime against person of the employer or

his immediate family or representatives.

What’s other Just Cause? 1. Loss of trust; 2. Gross negligence coupled with a grave

consequence; 3. Incompetence without improvement; 4. Habitual commission of minor offenses;

and 5. Unfit for continued employment based on

the “Totality of Infraction” doctrine.

What’s Authorized Cause? 1. Installation of labor-saving devices; 2. Redundancy; 3. Retrenchment to prevent losses; 4. Closing or cessation of establishment or

undertaking; 5. Disease prejudicial to health; and 6. Compulsory retirement.

What’s a Regularized Casual?

Regular Non-Regular Work is “Usually Necessary or Desirable in the Usual Business or Trade of the Employer”

Same

Security of Tenure Same

Tenure is until the age of compulsory retirement

Tenure is until completion of the project, ending of the season, expiration of the fixed-term or contract, or cessation of the emergency or temporary contingency

Non-Regular Security of Tenure (?)

Project Yes, but tenure expires upon completion of the project.

Seasonal Yes, but tenure expires upon the ending of the season.

Contractual or Fixed-term

Yes, but tenure expires upon the end of contract.

Temporary or Emergency

Yes, but tenure expires upon the cessation of the emergency or contingency.

Regular Probationary Work is “Usually Necessary or Desirable in the Usual Business or Trade of the Employer”

Same

Security of Tenure Same

No Probationary Period Probationary Period of 6 months or less

Regular from Day 1 Regularized upon qualifying, or if allowed to work beyond 6 months (whichever comes earlier)

Hiring Process

Firing Process

Employee

Employee Employee

P.R.P.A. • Outsource Hiring Process

Job Contractor

• Outsource Work

Hiring Process

Job Contracting

Principal

Employee Contractor CONTROL

NO CONTROL NO CONTROL

Labor ONLY Contracting

Principal

Employee Agent NO CONTROL

CONTROL NO CONTROL

Test of Employment

Hire Fire

Pay* Control

4-Fold Test

What’s Control?

End

Means

Control

Manpower Cooperative Principal

Employee Cooperative CONTROL


Self-Employed Cooperative Principal

Self-Employed

Cooperative NO CONTROL


Direct Contracting

Employer

Employee

5-5-5 Fixed-term

Labor Law 1. Full protection 2. Living wage 3. Humane conditions of work 4. Security of tenure 5. Participation in policy and decision-making 6. Just share in the fruits of production

1. Self-organization and collective bargaining; 2. Freedom of expression; and 3. Strike and other peaceful concerted activities

Labor-Management Cooperation

• Workers’ right • Participate • Policy & decision making processes • Rights, benefits and welfare • According to law

Unions and Certification Elections

• Workers’ right • Self-organization • Peaceful Concerted Activities • Strike • According to law

Takata (Philippines) Corporation -versus-

Bureau of Labor Relations and Samahang Lakas Manggagawa ng Takata

(SALAMAT) G.R. No. 196276


Unfair Labor Practice • Violation of workers’ right • Self-organization & CBA • Committed by employer or by union • Defined in Labor Code • Criminal, Civil or Administrative

Collective Bargaining Agreement

• Negotiated contract • Exclusive bargaining agent and • Employer • Terms and conditions of employment • Grievance and Arbitration provisions

Level or Rank

• Corporate officer • Manager • Managerial staff • Supervisor • Rank-and-file • Confidential

Mode of Payment

• Time-based • Results-based • Commission-based • Piece-rate • Pakyaw • Mixed

Other Types of Employee • Field personnel • Personal assistant • Domestic worker • Home worker • Working children • Alien

Other Work Arrangements • Apprentice and learner • Intern and trainee • Self-employed worker or freelancer • Virtual assistant • Partner • Agent • Consultant and professional

Illegal Discrimination • Women and pregnant women • Marriage and married women • Handicapped workers • Single parents or solo parents • HIV/AIDS positive workers

Other Hiring Practices • Sexual harassment in the workplace • Yellow dog contract • Drug-testing • Non-competition agreement • Non-disclosure agreement • Non-solicitation agreement

What’s the Essentials of HR & Labor Law?

D.O.C.U.M.E.N.T. © 2013

How to D.O.C.U.M.E.N.T. © 2013

D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand LR. M aster HR. E mbrace best practices. N egotiate, negotiate, negotiate!!! T ake advice only from experts.

Documentation X 3

• Pre-Employment Documentation.

• Employment Documentation.

• Pre-Termination & Post Employment Documentation.

Model Employment Contract

• Written, dated, and signed • Pre-employment & probation clauses • Regular or non-regular status • Obedience to company policies • Starting wages & specific benefits • Reference to job offer, handbook, etc.

Model Employee Handbook

• Written, dated, and signed receipt • Code of discipline • Code of ethics & performance criteria • Resignation & clearance process • Address changes & other policies • Benefits common to all employees

Model 201 File

• Employment contract • Job description and job offer sheet • Pre-employment documentation • Job application and bio-data sheet • Acknowledgment receipts • Certifications and test results



Open-Mindedness

• Be tolerant with your employees.

• Be receptive to new ideas and possibilities.

• Be accepting of the outcome.

Clarity

• Clarity in written communication.

• Clarity in oral communication and action.

• Clarity in purpose and objective.

Understand ER/LR • Understand that:

1. ER/LR is a “Game”.

2. the “Rules of the Game”.

3. the “Goals of the Game”.

Labor Relations Game

Unionism and Right to Strike

Labor Standard

Social Justice

Security of Tenure

Shared Responsibility Model

Business

Labor

Progress and

Development

Tripartite Model

Government

Business Labor

What is Social Justice? Business Labor

Law

Law

Law

Law

Law

Rule of Law

Constitution Laws (including Labor Laws)

Rules & Regulations

Jurisprudence Public Policies and Principles

of Equity

Contracts

Company Policies

Elements of Labor Law

Labor Law

Shared Responsibility

Social Justice

Rule of Law

Anatomy of a Labor Dispute

Capitalist Worker

Win-Win Lose-Win

Win-Lose Lose-Lose

Conflict Resolution Scenarios

What’s the Essentials of HR & Labor Law?

D.O.C.U.M.E.N.T. © 2013



Master HR

• ER/LR is essentially HR.

• HR is exemplified by MR.

• MR is enhanced by GR.

Embrace Best Practices

• Good Practices.

• Better Practices.

• Best Practices: PROGRESSIVE

DISCIPLINE

Negotiate X 3

• Negotiate before a labor dispute.

• Negotiate during a labor dispute.

• Negotiate after a labor dispute.

Take advice only from experts • Licensed or seasoned experts.

• Local labor law experts.

• Practical and trust-worthy experts.


D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand LR. M aster HR. E mbrace best practices: Progressive Discipline N egotiate, negotiate, negotiate!!! T ake advice only from experts.

Ethical Best Practices • Rotary Code of Conduct:

– “Be fair in all dealings with others and treat them with the respect due to them as fellow human being.”

• Human Relations, Civil Code: – “Article 19. Every person must, in the exercise

of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.”

Rotary’s 4-Way Test

How?

Truth

Fair

Goodwill and Better Friendships

Beneficial

Good Faith Test 1. Do no harm.

2. Make things better.

3. Respect others.

4. Be fair.

5. Be compassionate.

LABOR LAW MADE EASY (a Facebook page) https://www.facebook.com/legalcoach

LIKE COMMENT

SHARE TAG