Upload
pol-sangalang
View
573
Download
0
Tags:
Embed Size (px)
DESCRIPTION
The Essentials of HR and Labor Law. October 15, 2014. Asian Institute of Management, Makati City, Philippines. Prepared and delivered by Atty. Apollo X.C.S. Sangalang.
Citation preview
The Essentials ofHR and Labor Law
Atty. Apollo “PoL” X.C.S. SangalangBusiness Lawyer & Legal Coach
Disclaimer• No lawyer-client relationship.• Consult your own legal counsel.• Remember: legal opinions differ.• Respect the sub judice rule.• Avoid conflicts of interest.
Omni Hauling Services Inc., Lolita Franco and Aniceto Franco
-versus-Bernardo Bon, et. al. (and 17 other
worker-respondents)G.R. No. 199388
September 3, 2014Supreme Court of the Philippines
Labor Law Made Easy!https://www.facebook.com/legalcoach
- Free quick consultations (thru private message).
- Learn somethingnew daily (and forfree!).- Links to resources,sites, and events foreasy access.
What’s the Essentials of HR and Labor Law?
D.O.C.U.M.E.N.T. © 2013
GOOD FAITH
How to D.O.C.U.M.E.N.T. © 2013
D ocumentation, documentation, documentation!!! O pen-mindedness.C larity.U nderstand Labor Law principles.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 and Post Employment Documentation.
Open-Mindedness
• Be tolerant with your workers.
• Be receptive to new ideas and possibilities.
• Be accepting of the outcome.
Clarity
• Clarity in written communication.
• Clarity in your talk and action.
• Clarity in purpose and objective.
Understand Labor Law Principles• Understand that:
1. Labor Law is a “Game”.
2. the “Rules of the Game”.
3. the “Goals of the Game”.
It all starts with a…
Hiring Strategy!
Hiring Process
The Evolution ofLabor Law
Did you know that…
Employmentis a
CONTRACT?
“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)
Law on Contracts
The Evolution ofOwnership
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).
TheEmployerPowerEquation
Ownership+ Contracts
________________________________________________________
= Power
Employer Rights!“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 Prerogative1. Right to hire;2. Right to fire;3. Right to fix compensation
& benefits; and4. Right to control.
“So what’s the problem?”
Management Prerogativeis
NOT Absolute!
Well…
“Why!?”
Because Labor Law LIMITS
Management Prerogative!
“What are these limitations?”1) The burden of proving that the
termination was for a valid or authorized cause shall rest on the employer. (Article 291 paragraph 2, Labor Code)(Formerly Article 277)
2) All doubts in the interpretation and implementation of the Labor Code and its implementing rules and regulations shall be resolved in favor of LABOR. (Article 4, Labor Code)
The Evolution ofManagement Prerogative
TheFull Protection Equation
The Evolution of HR
How to D.O.C.U.M.E.N.T. © 2013
D ocumentation, documentation, documentation!!! O pen-mindedness.C larity.U nderstand Labor Law principles.M aster HR.E mbrace best practices.N egotiate, negotiate, negotiate!!!T ake advice only from experts.
Master HR
• ER / LR is essentially HR.
• HR is exemplified by MR.
• MR is enhanced by GR.
Did you know that…
Employmentis like
MARRIAGE?
MARRIAGE
EMPLOYMENT
Anatomy of a Labor Dispute
Labor Relations Game
Rule of Law
Shared Responsibility Model
Tripartite Model
What is Social Justice?
Elements of Labor Law
Did you know that…
Labor Law is about 90% ++
Employment Law?
Did you know that…
Not everyone who gets hired becomes
an employee?
Hiring Process
Labor Law1. Full protection2. Living wage3. Humane conditions of work4. Security of tenure5. Participation in policy-making and
decision-making6. Sharing of the fruits of production
• Self-organization and collective bargaining;• Freedom of expression; and• Strikes or other peaceful-concerted activities
Minimum Wage Holiday Pay Retirement Pay
Premium Pay Overtime PayCompensation Benefit* (ECC)
Night Shift Differential Service Charges
PhilHEALTH Benefit*
Service Incentive Leave Maternity Leave
Social Security Benefit*
Paternity Leave Solo Parents Leave Pag-IBIG Benefit*
VAWC Leave Special Leave for Women
13th Month Pay Separation Pay
2014 Handbooks
Non-Diminution of Benefits
Test of Employment
What’s Control?
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
Did you know that…
Job titles as well as contractual disclaimers
are NON-binding?
Types of Employment
Private Sector Government
Regular (Nature) Casual
Regular (Term) Non-Regular
Rank-and-file Manager & Supervisor
Time-based Results-based
Private Sector GovernmentLabor 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 is Security of Tenure?”TERMINATION OF EMPLOYMENT
ONLY ON THE GROUNDS OF:
1. JUST CAUSE; OR
2. AUTHORIZED CAUSE
“What is Just Cause?”1. Serious misconduct;2. Willful disobedience (or insubordination);3. Gross and habitual neglect of duties;4. Fraud;5. Willful breach of trust; and6. Crime against person of the employer or
his immediate family or representatives.
Other Kinds of Just Causes1. Loss of trust;2. Gross negligence coupled with a grave
consequence;3. Incompetence without improvement;4. Habitual commission of minor offenses;
and5. Unfit for continued employment based on
the “Totality of Infraction” doctrine.
“What is 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; and6. Compulsory retirement.
“What’s a Regularized Casual?”
A CASUAL EMPLOYEE WHO RENDERED AT LEAST 1 YEAR
OF SERVICE, WHETHER CONTINUOUS OR BROKEN, IS CONSIDERED REGULARIZED.
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)
How you HIREdetermines how
you FIRE!
Hiring Process
Job Contracting
CONTROL
NO CONTROLNO CONTROL
Labor ONLY Contracting
NO CONTROL
CONTROLNO CONTROL
Test of Employment
What’s Control?
Direct Contracting
5-5-5 Fixed-term
Manpower Cooperative
CONTROL
NO CONTROLNO CONTROL
Self-Employed Cooperative
NO CONTROL
NO CONTROLNO CONTROL
Labor Law1. Full protection2. Living wage3. Humane conditions of work4. Security of tenure5. Participation in policy and decision-making6. Just share in the fruits of production
1. Self-organization and collective bargaining;2. Freedom of expression; and3. 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 andSamahang Lakas Manggagawa ng Takata
(SALAMAT)G.R. No. 196276
June 4, 2014Supreme Court of the Philippines
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
How to D.O.C.U.M.E.N.T. © 2013
D ocumentation, documentation, documentation!!! O pen-mindedness.C larity.U nderstand Labor Law principles.M aster HR.E mbrace best practices.N egotiate, negotiate, negotiate!!!T ake advice only from experts.
Embrace Best Practices• Good Practices.
• Better Practices.
•Best Practices: WRITTEN EMPLOYMENT
CONTRACT
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 & notification• Common benefits listed
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
How to D.O.C.U.M.E.N.T. © 2013
D ocumentation, documentation, documentation!!! O pen-mindedness.C larity.U nderstand Labor Law principles.M aster HR.E mbrace best practices.N egotiate, negotiate, negotiate!!!T ake advice only from experts.
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.
What’s the Essentials of HR and Labor Law?
D.O.C.U.M.E.N.T. © 2013
GOOD FAITH
Best of the Best HR Practice• 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
Good Faith Test1. Do no harm.
2. Make things better.
3. Respect others.
4. Be fair.
5. Be compassionate.
WHAT IS GOOD FAITH?GOOD FAITH
SIMPLY MEANS
FAITH IN GOD
LABOR LAW MADE EASY(a Facebook page) https://www.facebook.com/legalcoach
LIKECOMMENT
SHARETAG