Professional Documents
Culture Documents
B. LEGAL BASIS
i. 1987 Philippine Constitution
I.
a. Social Justice
b. Protection of Labor
Sec 1, Art XIII, 1987 Constitution:
Social Justice and Human Rights
The Congress shall give highest priority to the
enactment of measures that protect and enhance
the right of all the people to human dignity,
reduce
social,
economic,
and
political
inequalities, and remove cultural inequalities by
equitably diffusing wealth and political power for
the common good.
To this end, the State shall regulate the
acquisition, ownership, use and, disposition of
property and its increments.
Sec 2, Art XIII, 1987 Constitution
The promotion of social justice shall include the
commitment to create economic opportunities
based on freedom of initiative and self-reliance.
C. WORK RELATIONSHIP
Employer and employee, defined
Person, defined
Art 97. Definitions, (a) Person
The relation between capital and labor are not
merely contractual. They are so impressed with
public interest that labor contracts must yield to
i. Employer-employee relationship
3 Art 97. Definitions, (a) Employer
4 Art 167. Definitions, (c) Employee, Title II: Employees 6 Abad, Jr, Antonio H. (2008). The Law on Labor Standards. Rex
compensation and State Insurance Fund, Book 4: Health, SafetyPrinting Company, Inc.
and Social Welfare Benefits, Labor Code
The number of persons dealt with is not an including the establishment of a registration
essential ingredient of the act of recruitment and and/or work permit system;
placement of workers.9
Any of the acts mentioned in Art 13(b) willf) To strengthen the network of public
constitute recruitment and placement even if employment offices and rationalize the
only prospective worker is involved. The proviso participation of the private sector in the
merely lays down a rule of evidence that when a recruitment and placement of workers, locally
fee is collected in consideration of a promise orand overseas, to serve national development
offer of employment to two or more prospective objectives;
workers, the individual or entity dealing with
them shall be deemed to be engaged in the act of g) To insure careful selection of Filipino workers
recruitment and placement. 10
for overseas employment in order to protect the
good name of the Philippines abroad.
B. EMPLOYMENT POLICIES
Art 2, Section 9, 1987 Constitution
The State shall promote a just and dynamic
social order that will ensure the prosperity and
independence of the nation and free the people
from poverty through policies that provide
adequate
social
services,
promote
full
employment, a rising standard of living, and an
improved quality of life for all.
Art 12, Labor Code
It is the policy of the State:
C.
EMPLOYMENT
ENTITIES
11 Azucena
12 Azucena
AGENCIES/
Authority, defined
Article (f), Labor Code
"Authority" means a document issued by the
Department of Labor authorizing a person or
association to engage in recruitment and
placement activities as a private recruitment
entity.
Disqualifications
The following are not qualified to engage in the
business of recruitment and placement of Filipino
workers overseas:14
1. Travel agencies and sales agencies of airline
companies;
2. Officers or members of the Board of any
corporation or members in a partnership
engaged in the business of a travel agency;
3. Corporations and partnerships, when any of its
officers, members of the board or partners, is
also an officer, member of the board or partner
of a corporation or partnership engaged in the
business of a travel agency;
4. Persons, partnerships or corporations which
have derogatory records, such as but not limited
to the following:
a. Those certified to have derogatory record
or information by the National Bureau of
Investigation or by the Anti-Illegal
Recruitment Branch of the POEA;
b. Those against whom probable cause or
prima facie finding of guilt for illegal
recruitment or other related cases exists;
c. Those convicted for illegal recruitment or
other related cases and/or crimes
involving moral turpitude; and
d. Those agencies whose licenses have been
previously revoked or cancelled by the
Administration for violation of RA 8042,
PD 442 as amended and their
implementing rules and regulations as well
as these rules and regulations.
All applicants for issuance/renewal of
license shall be required to submit
clearances from the National Bureau of
Investigation and Anti-illegal Recruitment
Branch, POEA, including clearances for
their respective officers and employees.
5. Any official or employee of the DOLE, POEA,
OWWA, DFA and other government agencies
directly involved in the implementation of R.A.
8042, otherwise known as Migrant Workers and
Overseas Filipino Act of 1995 and/or any of
his/her relatives within the fourth civil degree of
consanguinity or affinity; and
6. Persons or partners, officers and Directors of
corporations whose licenses have been
previously cancelled or revoked for violation of
recruitment laws.
14 POEA Rules and Regulations Governing the Recruitment and
Employment of Seafarers (Sec. 2, Part II, Rule I, 2003 POEA
Rules)
D. GOVERNMENT TECHNIQUES
REGULATION
PRIVATE RECRUITMENT
i. Issuance of License
Art 27. Citizenship Requirement, POEA
Rules
Only Filipino citizens or corporations,
partnerships or entities at least seventy-five
percent (75%) of the authorized and voting
capital stock of which is owned and controlled
by Filipino citizens shall be permitted to
participate in the recruitment and placement of
workers, locally or overseas.
1.
10
5.
11
12
1.
Failure to actually deploy without valid Illegal recruitment is deemed committed in large
reasons as determined by the Department ofscale if committed against three (3) or more persons
Labor and Employment; and
individually or as a group.
2. Failure to reimburse expenses incurred by
the workers in connection with his
d. Syndicated Illegal Recruitment
documentation and processing for purposes
of deployment, in cases where theIllegal recruitment is deemed committed by a
deployment does not actually take place syndicate if carried out by a group of three (3) or
without the worker's fault.
more persons conspiring and/or confederating with
one another in carrying out any unlawful or illegal
The persons criminally liable for the above offenses transaction, enterprise or scheme defined under the
are the principals, accomplices and accessories. Infirst paragraph hereof.
case of juridical persons, the officers having control,
management or direction of their business shall be Definition of Illegal Recruitment under Article 38 is
liable.
impliedly repealed by RA 8042. (Anonuevo)
v . Illegal Recruitment (Art. 38, LC)
Section 6, RA 8042 Migrant Workers and
Overseas Filipinos Act of 1995
Illegal recruitment shall mean any act of
canvassing, enlisting, contracting, transporting,
utilizing, hiring, procuring workers and includes
referring, contact services, promising or
advertising for employment abroad, whether for
profit or not, when undertaken by a non-license
or non-holder of authority contemplated under
Article 13(f) of Presidential Decree No. 442, as
amended, otherwise known as the Labor Code of
the Philippines. Provided, that such non-license
or non-holder, who, in any manner, offers or
promises for a fee employment abroad to two or
more persons shall be deemed so engaged.
a. Illegal Recruitment w/o license
Any recruitment activities, including the prohibited vi. Enforcement and Sanctions
practices enumerated under Article 34 of this Code,
to be undertaken by non-licensees or non-holders of Suspension and/or cancellation of license
authority, shall be deemed illegal and punishable or authority. (Art. 35, LC)
The Secretary of Labor shall have the power to
under Article 39 of this Code.
suspend or cancel any license or authority to
The Department of Labor and Employment or anyrecruit employees for overseas employment for
law enforcement officer may initiate complaints violation of rules and regulations issued by the
under this Article. All you need to prove is that the Ministry of Labor, the Overseas Employment
non-licensee is practicing recruitment. (Anonuevo) Development Board, or for violation of the
provisions of this and other applicable laws,
General Orders and Letters of Instructions.
b. Illegal Recruitment w/ license
Sec. 6 of RA 8042 enumerated grounds for illegal Regulatory Power (Art. 36, LC)
recruitment done by those
The Secretary of Labor shall have the power to
who have license. (Id.)
restrict and regulate the recruitment and
placement activities of all agencies within the
c. Large Scale Illegal Recruitment
coverage of this Title and is hereby authorized to
issue orders and promulgate rules and
regulations to carry out the objectives and
13
14
Dismissal
from
the
service
with
disqualifications to hold any appointive
public office for five (5) years.
15
F. JURISDICTION
Administrative
and
G. ALIEN EMPLOYMENT
REGULATION
16
The ownership and management of mass media shall for employment purposes and any domestic or
be limited to citizens of the Philippines, or to foreign employer who desires to engage an alien
corporations, cooperatives or associations, wholly-for employment in the Philippines shall obtain
owned and managed by such citizens.
an employment permit from the Department of
The Congress shall regulate or prohibit monopoliesLabor.
in commercial mass media when the public interest
so requires. No combinations in restraint of trade or The employment permit may be issued to a nonunfair competition therein shall be allowed. (Art. resident alien or to the applicant employer after
XVI, Sec. 11(1),
a determination of the non-availability of a
Constitution)
person in the Philippines who is competent, able
and willing at the time of application to perform
Art. XVI, Sec. 11(2), 1987 Constitution
the services for which the alien is desired. For an
enterprise registered in preferred areas of
The advertising industry is impressed with
investments, said employment permit may be
public interest, and shall be regulated by law for
issued upon recommendation of the government
the protection of consumers and the promotion
agency charged with the supervision of said
of the general welfare.
registered enterprise.
Only Filipino citizens or corporations or
associations at least seventy per centum of the
capital of which is owned by such citizens shall
Article 41 of the Labor Code
be allowed to engage in the advertising industry.
Prohibition against transfer of employment.
The participation of foreign investors in the
a. After the issuance of an employment permit,
governing body of entities in such industry shall
the alien shall not transfer to another job or
be limited to their proportionate share in the
change his employer without prior approval
capital thereof, and all the executive and
of the Secretary of Labor.
managing officers of such entities must be
b. Any non-resident alien who shall take up
citizens of the Philippines.
employment in violation of the provision of
this Title and its implementing rules and
Art. XII, Sec. 11, 1987 Constitution
regulations shall be punished in accordance
with the provisions of Articles 289 and 290
No franchise, certificate, or any other form of
of the Labor Code.
authorization for the operation of a public utility
shall be granted except to citizens of the
In addition, the alien worker shall be subject to
Philippines or to corporations or associations
deportation after service of his sentence.
organized under the laws of the Philippines, at
least sixty per centum of whose capital is owned
by such citizens; nor shall such franchise,
certificate, or authorization be exclusive in
Submission of List, Article 42 of the
character or for a longer period than fifty years.
Labor Code
Neither shall any such franchise or right be
Any employer employing non-resident foreign
granted except under the condition that it shall
nationals on the effective date of this Code shall
be subject to amendment, alteration, or repeal
submit a list of such nationals to the Secretary of
by the Congress when the common good so
Labor within thirty (30) days after such date
requires.
indicating their names, citizenship, foreign and
local addresses, nature of employment and
The State shall encourage equity participation in
status of stay in the country. The Secretary of
public utilities by the general public. The
Labor shall then determine if they are entitled to
participation of foreign investors in the
an employment permit.
governing body of any public utility enterprise
shall be limited to their proportionate share in
i. Coverage
its capital, and all the executive and managing
officers of such corporation or association must
Section 1, D.O. 97-09, The Revised Rules
be citizens of the Philippines.
for the Issuance of Employment Permits
to Foreign Nationals
Employment permit of non-resident
All foreign nationals who intend to engage in
aliens, Article 40 of the Labor Code
gainful employment in the Philippines shall
Any alien seeking admission to the Philippines
apply for Alien Employment Permit (AEP).
17
18
c.
agreement
with
an occupation during an
individual employer or established
period
any of the entities assured
by
an
recognized under this apprenticeship
Chapter.
agreement
Apprenticeship Agreement
d. Encourage critical and creative thinking by
An employment contract
A contract wherein a
disseminating the scientific and technical
wherein the employer prospective
employer
knowledge base of middle-level manpower
binds himself to train the binds himself to train the
development programs;
apprentice
and
the apprentice who in turn
apprentice
in
turn accepts the terms of
accepts the terms of training for a recognized
e. Recognize
and
encourage
the
training.
apprenticeable
complementary roles of public and private
occupation emphasizing
institutions in technical education and skills
the rights, duties and
development and training systems; and
responsibilities of each
party
f. Inculcate desirable values through the
Apprenticeable Occupation
development of moral character with
Any trade, form of An occupation officially
emphasis on work ethic, self-discipline, selfemployment
or endorsed by a tripartite
reliance and nationalism.
occupation
which body and approved for
requires more than three apprenticeship
by
(3) months of practical the Authority
Middle-Level Manpower
training on the job
1. Those who have acquired practical skills and supplemented by related
theoretical instruction.
B.
TESDA Law
Apprenticeship
Practical training on the Training
within
job supplemented by employment
with
related
theoretical compulsory
related
instruction
theoretical instructions
involving
a
contract
between an apprentice
and an employer on an
approved apprenticeable
occupation
Apprentice
A worker who is covered A person undergoing
by
a
written training
for
an
apprenticeship
approved apprenticeable
ii. Qualifications
Sec. 12. Employment of Children, RA
7610: Special Protection of Children
Against Abuse, Exploitation and
Discrimination Act." as amended by RA
7658
Children below fifteen (15) years of age
shall not be employed except:
1.
19
20
v. Enforcement
Art 65 to 67, Labor Code
Investigation
of
violation
of
apprenticeship agreement. Upon complaint
of any interested person or upon its own
initiative, the appropriate agency of the
Department of Labor and Employment or its
authorized representative shall investigate any
violation of an apprenticeship agreement
pursuant to such rules and regulations as may be
prescribed by the Secretary of Labor and
Employment.
Appeal to the Secretary of Labor and
Employment. The decision of the authorized
agency of the Department of Labor and
Employment may be appealed by any aggrieved
person to the Secretary of Labor and
Employment within five (5) days from receipt of
the decision. The decision of the Secretary
of Labor and Employment shall be final and
executory.
Exhaustion of administrative remedies.
No person shall institute any action for the
enforcement of any apprenticeship agreement or
damages for breach of any such agreement,
unless he has exhausted all available
administrative remedies.
21
Apprenticeship
Nature
Highly Technical
Period
Not less than 3
months but not more
than 6 months
occupation as
established
through
appropriate tests;
and
4. The person is able
to comprehend
and follow oral
and written
instructions
Wage rate
General Rule
General Rule
Not less than 75% of
Not less than 75% of
the minimum wage
the minimum wage
Exception
Learners in
piecework shall be
paid in full for the
work done.
Exception
No compensation
if SOLE
authorizes, as OJT
is required by the
school
22
stipulated period
through no fault of the
learners.
iii. Enforcement
i. Policy Declaration
Sec 2 . Declaration of Policies, RA 7277.
Magna Carta for Disabled Persons
23
e.
f.
g.
ii. Coverage
Sec 3. Coverage, RA 7277. Magna Carta
for Disabled Persons
This Act shall cover all disabled persons and,
to the extent herein provided, departments,
24
Coverage
General rule: Applicable to all employees in all
establishments and undertakings, whether for profit
or not
Exception: Not covered
1. Government employees
2. Managerial Employees
3. Field personnel
4. Dependent family members
5. Domestic helpers
6. Persons in service of another
7. Piece workers
25
1. Managerial employees
Must meet all requirements:24
a.
a.
b. Customarily
and
regularly
exercise
discretion and
independent judgment; and
c.
(1964)
26
Field personnel
Non-agricultural employees who regularly
perform their duties away from the principal
place of business or branch office of the
employer and whose actual hours of work in
the field cannot be determined with
reasonable certainty.30
B. HOURS OF WORK
i. Normal hours of work
Art 83, Normal Hours of Work
The normal hours of work of any employee shall
not exceed eight (8) hours a day.
Health personnel in cities and municipalities
with a population of at least one million
(1,000,000) or in hospitals and clinics with a
bed capacity of at least one hundred (100) shall
hold regular office hours for eight (8) hours a
day, for five (5) days 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 an additional compensation
of at least thirty percent (30%) of their regular
wage for work on the sixth day. For purposes of
this Article, "health personnel" shall include
resident physicians, nurses, nutritionists,
27
dietitians,
pharmacists,
social
workers,
laboratory technicians, paramedical technicians,
psychologists, midwives, attendants and all
other hospital or clinic personnel.
a. Health personnel
Health personnel, included
a. resident physicians
b. nurses, nutritionists
c. dietitians
d. pharmacists
e. social workers
f. laboratory technicians
g. paramedical technicians
h. psychologists
i. midwives
j. attendants
k. All other hospital or clinic personnel.
28
c. Management prerogative
2. At work
All time during which an employee is
suffered or permitted to work.
1.
41 San Miguel Brewery Sales Force Union (PTGWO) vs. Ople, 170
SCRA 25 (1989)
40 San Miguel Brewery Sales Force Union (PTGWO) vs. Ople, 170 43 Sec 4, Rule I, Book III, IRR, Principles in determining hours
SCRA 25 (1989)
worked.
29
employee is
employer,
required
a.
to
give
his
a. Rest period
30
c. Waiting time
Sec 5 (a). Waiting time, Rule 1, Book III,
IRR
Waiting time spent by an employee shall be
considered as working time if waiting is an
integral part of his work or the employee is
required or engaged by the employer to
wait.
Legal test
Whether waiting time constitute working time
depends upon the circumstances of each
particular case. The facts may show that the
During meal period where the laborers are
employer was engaged or was waiting to be
required to stand by for emergency work or
engaged. The controlling factor is whether
where said meal hour is not one of complete rest,
waiting time spend in idleness is so spent
48
such period is considered overtime.
predominantly for the employers benefit or for
the employees.52
General rule:
Meal periods are not compensable
(d) Where the work is necessary to prevent
serious loss of perishable goods.
d. On call
Exceptions: it is compensable
1. Where meal time is predominantly spentSec 5 (b). Working while on call, Rule 1,
for the employers benefit49
Book III, IRR
2. Meal period of 1 hour is deemedAn employee who is required to remain on call
compensable when employee is onin the employer's premises or so close thereto
continuous shift50
that he cannot use the time effectively
3. Shortened meal period of less than 1 and gainfully for his own purpose shall be
hour but not less than 20 hours subject considered as working while on call.
to qualifications under Sec 7, par 1, Rule
I, Book III, IRR
An employee who is not required to leave word
at his home or with company officials where he
If meal time is less than 20 minutes, it is may be reached is not working while on call.
considered Rest period and shall be
considered compensable time.
48 Philippine Airlines v NLRC, 302 SCRA 582 (1999)
49 Azucena citing 31 Am. Jur. 881; Duka, Labor Laws and Social
Legislation
31
The employees can leave their workplace(c) The employee does not perform any
or go elsewhere whether within or
productive work during such attendance.
without the work premises; or
b. The employees can use the time
i. Travel time
effectively for their own interest
(workplace)
In each case, the employer may extend the Official travel away from an employees
53
working hours of his employees outside the is hours of work if travel is:
regular schedules to compensate for the loss of
1. within the days and hours of the employees
productive man-hours without being liable for
regularly
scheduled
administrative
overtime
workweek, including regularly scheduled
overtime hours, or
Industrial enterprise with one or two workshifts may
2. outside the hours of the employees regularly
adopt any of the workshifts prescribed for
scheduled administrative workweek, is
enterprises with 3 workshifts to prevent serious loss
ordered or approved, and meets one of the
or damage to materials, machineries, or equipment
following four conditions:
that may result in case of power interruptions.
a. involves the performance or work while
traveling (such as driving a loaded truck)
g. Work after normal hours
b. is incidental to travel that involves the
performance of work while traveling
Sec 4 (c), Rule 1, Book III, IRR
(such as driving an empty truck back to
If the work performed was necessary, or it
the point of origin)
benefited the employer, or the employee could
not abandon his work at the end of his normal
53 USC 5542(b)(2) and 5 CFR 550. 112(g), US Office of Personnel
working hours because he had no replacement,
Management; Abad (2011), Compendium on labor law
all time spent for such work shall be
considered as hours worked, if the work
32
c.
j. Commuting time54
General rule: Normal commuting time from home
to work and from work to home is not hours of work.
Exception:
Commuting time may be hours of work when
the employee is required to perform
substantial work under the control and
supervision of the employer.
v. Overtime work/pay
33
34
Exception:
1. Government employees
2. Those
of
retail
and
service
establishments regularly employing not
more than five (5) workers;
3. Domestic helpers and persons in the
personal service of another;
35
4. Managerial employees
Work on a scheduled rest day/special holiday
5. Field personnel and other employeesRate: Employee shall be paid a compensation
whose time and performance isequivalent to his regular wage plus at least thirty
unsupervised by the employer including(30%) percent and an additional amount of not less
those who are engaged on task orthan ten (10%) per cent of such premium pay rate for
contract basis, purely commission basis,each hour of work performed.
or those who are paid a fixed amount for
performing work irrespective of the time Work on a regular holiday
consumed in the performance thereof. Rate: regular wage plus an additional compensation
of no less than ten (10%) per cent of such premium
rate for each hour of work performed.
Night shift
Time: 10:00pm 6:00 am
Rate: not less than 10% of his regular wage for each
hour of work
Sec 3. Additional compensation, Rule II.
Night Shift Differential, Book III, IRR
Where an employee is permitted or suffered to
work on the period covered after his work
schedule, he shall be entitled to his regular wage
plus at least twenty-five per cent (25%) and an
additional amount of no less than ten per cent
(10%) of such overtime rate for each hour or
work performed between 10 p.m. to 6 a.m.
Sec 4. Additional compensation on
scheduled rest day/special holiday, Rule
II. Night Shift Differential, Book III, IRR
An employee who is required or permitted to
work on the period covered during rest days
and/or special holidays not falling on regular
holidays, shall be paid a compensation
equivalent to his regular wage plus at least thirty
(30%) per cent and an additional amount of not
less than ten (10%) per cent of such premium
pay rate for each hour of work performed.
Sec 5. Additional compensation on
regular holidays, Rule II. Night Shift
Differential, Book III, IRR
For work on the period covered during regular
holidays, an employee shall be entitled to his
regular wage during these days plus an
additional compensation of no less than ten
(10%) per cent of such premium rate for each
hour of work performed.
B. WAGES
Wage, defined
Art 97 (f): Definition of Wage
"Wage" paid to any employee shall mean the
remuneration or earnings, however designated,
capable of being expressed in terms of money,
whether fixed or ascertained on a time, task,
piece, or commission basis, or other method of
calculating the same, which is payable by an
employer to an employee under a written or
unwritten contract of employment for work done
or to be done, or for services rendered or to be
rendered and includes the fair and reasonable
value, as determined by the Secretary of Labor
and Employment, of board, lodging, or other
facilities customarily furnished by the employer
to the employee. "Fair and reasonable value"
shall not include any profit to the employer, or
to any person affiliated with the employer.
Definition of wage
1. It is the remuneration or earnings, however
Overtime during 10:00pm 6:00 am
designated capable of being expressed in
Rate: Employee shall be entitled to his regular wage
terms of money,
plus at least twenty-five per cent (25%) and an 2. Whether fixed or ascertained on a time, task,
additional amount of no less than ten per
piece, or commission basis, or other method of
cent (10%) of such overtime rate for each hour
calculating the same,
or work performed between 10 p.m. to 6 a.m.
3. Which is payable by an employer to an employee
4. Under a written or unwritten contract of
36
Exception
When the laborer was able, willing and ready Facilities and Supplements, distinction
to work but was illegally locked out,
Facilities
Supplements
suspended or dismissed, or otherwise
How
treated
illegally prevented from working.73
Wage-deductible
Not wage-deductible
(wage
includes
Equal Work for Equal Pay Principle
facilities)
Persons who work with substantially equal
Purpose
qualifications, skill, effort and responsibility Articles or services Tools of the trade or
under similar working conditions should be paid for the benefit of articles or service
similar salaries.74
the employee or his primarily for the
family.
benefit of the
If an employer accords employees the same
employer or
position and rank, the presumption is that these
necessary to the
employees perform equal work.75
conduct of the
employers business.
Coverage
The rules on wages do not apply to the following
1. Household or domestic helpers, including Criterion. In determining whether a privilege is
family drivers, and persons in the personal
a facility, the criterion is not so much its kind but
service of another
its purpose.79
2. Homeoworkers engaged in needlework
3. Workers employed in any establishment
Requirements for deducting value of facilities
registered with the National Cottage
1. Customarily furnished by the trade Industries and Development Authority
(NACIDA) in accordance with RA 347076 Approved and took effect on 16 June 1962; amended by RA
5326 on 15 June 1968
37
"Customary" is founded on long-established andsalary rates between and among employee groups in
constant practice connoting regularity. Thean establishment as to effectively obliterate the
receipt of an allowance on a monthly basis doesdistinctions embodied in such wage structure based
not ipso facto characterize it as regular andon skills, length of service, or other logical bases of
forming part of salary because the nature of the differentiation
grant is a factor worth considering80
2. Voluntarily accepted in writing by the employee; Elements of wage distortion85
and
1. Existing hierarchy of positions with
3. Charged at fair and reasonable value. 81
corresponding salary rates
2. A significant change in the salary rate of a
lower pay class without a concomitant
Wages and Salaries, distinguished
increase in the salary rate of a higher one
3. The elimination of the distinction
Wages
and
salary
are
in
essence
between the two levels; and
synonymous and are used interchangeably.
4. The existence of the distortion in the same
However, strictly speaking, there is a legal
region of the country.
distinction.82
Wage
Paid for skilled or
unskilled manual labor
Salary
Paid to white collar
workers and denote a
higher
grade
of
employment
Not
subject
execution,
garnishment
attachment except
debts
related
necessities83
Not
exempt
execution,
garnishment
attachment84
to
or
for
to
from
or
Unorganized Establishment 86
1. Employer and Employees shall endeavor
to correct such distortions.
2. Disputes shall be settled through the
National Conciliation and Mediation
Board.
3. If still unresolved after 10 calendar days
of conciliation, it shall be referred to the
appropriate branch of the NLRC
compulsory arbitration.
83 Art. 1708
38
requirement.87
Exceptions:
Not applicable When at least one of the
requisites is absent.
Such unpaid wages and monetary claims shall be
1. Mistake in the application of the law88 paid in full before the claims of the Government
2. Negotiated benefits89
and other creditors may be paid. (As amended
Benefits initiated through negotiationby R. A. 6715)
between Employee and Employer, e.g.
CBA, can only be eliminated orArt. 1707, Civil Code
diminished bilaterally.
The laborer's wages shall be a lien on the goods
3. Reclassification of Positions
manufactured or the work done.
e.g. loss of some benefits by promotion.
4. Contingent or Conditional Benefits The
Art 2241 (6)
rule does not apply to a benefit whose
With reference to specific movable property of
grant depends on the existence of certain
the debtor, the following claims or liens shall be
conditions, so that the benefit is not
preferred:
demandable if those preconditions are
absent.
6. Claims for laborers' wages, on the goods
manufactured or the work done;
Requisites
If the following are met, then the employer cannot
Art 2242 (2) and (3)
remove or reduce benefits:
With reference to specific immovable property
1. Ripened company policy
Benefit is founded on a policy which has and real rights of the debtor, the following
ripened into a practice over a long period90 claims, mortgages and liens shall be preferred,
2. Practice is consistent and deliberate and and shall constitute an encumbrance on the
immovable or real right:
87 Philippine National Bank vs. PEMA, 115 SCRA 507
88 Globe Mackay Cable v. NLRC, G.R. No. 74156 (June 29, 1988)
89 Azucena
39
Wage protection
1.
1.
40
a.
b.
c.
With Employees
consent in Writing
1. SSS Payments
2. PHILHEALTH
payments
3. Contributions to
1.
Without
Employees
consent
Workers
insurance
acquired by the
employer
General Rule
No employer, in his own behalf or in behalf of any
person, shall make any deduction from the wages of
96 Art 1708, Civil Code
his employees.
Exceptions
1. Employee is insured with his consent by
the employer, and the deduction is to 97 Radio Communication of the Phil., Inc. v. Sec. of Labor (1989)
recompense the employer for the
41
PAG-IBIG Fund
4. Value of meals
and other
facilities
5. Payments to third
persons with
employees
consent
6. Deduction of
absences
7. Union dues,
where check-off
is not provided in
the CBA.
2. Union dues,
where the right to
check-off is
recognized by the
employer
(provided in the
CBA)
3. Debts of the
employee to the
employer that
have become due
and demandable
c. Prohibition against
requirement to make
deposits for loss or damage
Art. 114. Deposits for loss or damage.
No employer shall require his worker to make
deposits from which deductions shall be made
for the reimbursement of loss of or damage to
tools, materials, or equipment supplied by the
employer, except when the employer is engaged
in such trades, occupations or business where
the practice of making deductions or requiring
deposits is a recognized one, or is necessary or
desirable as determined by the Secretary of
Labor and Employment in appropriate rules and
regulations.
Art. 115. Limitations.
No deduction from the deposits of an employee
for the actual amount of the loss or damage shall
be made unless the employee has been heard
thereon, and his responsibility has been clearly
shown.
d. Prohibition against
withholding of wages
Art. 116. Withholding of wages and
kickbacks prohibited
It shall be unlawful for any person, directly or
indirectly, to withhold any amount from the
wages of a worker or induce him to give up any
part of his wages by force, stealth, intimidation,
threat or by any other means whatsoever
without the workers consent.
e. Prohibition against
deduction to ensure
employment
42
General Rule
This article is similar to Art. 248(f) which The laborer's wages shall not be subject to execution
classifies as unfair labor practice (ULP) an or attachment
employers prejudicial act against an employee
Exception
who gave or is about to give a testimony under
For debts incurred for food, shelter, clothing
the Code. However, they differ on the subject of
and medical attendance
the testimony.
Art. 118
Subject of testimony
is wages
The
employers
retaliatory
act
is
unlawful but not ULP
(unless the act is
intended to impair
the right to selforganization
of
employees)
Art. 248(f)
Subject is anything
under the Code
The
employers
retaliatory act is ULP.
i. Prohibition against
garnishment or execution
b. Wage
adjustment
consumer price index
vis-a -vis
the
43
c.
f.
g.
j.
44
Effectivity
If it decides to ISSUE a wage order, the wage
order takes effect after 15 days from
complete publication in at least 1 newspaper
of general circulation in the region
4. Appeal wage order to Commission within 10
calendar
days;
mandatory
for
the
Commission to decide within 60 calendar
days from filing
Filing of an appeal DOES NOT STAY order
unless appellant files an undertaking with a
surety, to guarantee payment of employees if the
wage order is affirmed (as amended by RA 6727)
45
Composition
1.
1.
2.
3.
Secretariat
Powers and
Functions
4.
1.
2.
1.
2.
3.
4.
5.
6.
7.
2.
3.
4.
5.
6.
46
C. REST DAYS
Coverage and Scheduling
Art 91. Right to weekly rest day.
It shall be the duty of every employer,
whether operating for profit or not, to provide
each of his employees a rest period of not
less than twenty-four (24) consecutive
hours after every six (6) consecutive
normal work days.
The employer shall determine and schedule the
weekly rest day of his employees subject to
collective bargaining agreement and to
such rules and regulations as the Secretary
of Labor and Employment may provide.
However, the employer shall respect the
preference of employees as to their weekly
rest day when such preference is based on
religious grounds.
Compulsory Work
Article 92. When employer may require
work on a rest day.
The employer may require his employees to
work on any day:
a.
d. To prevent loss
perishable goods;
or
damage
to
e.
f.
Compensation
Article 93. Compensation for rest day,
Sunday or holiday work.
a.
47
On any special
holidays/special day
On any regular holiday
falling on scheduled
rest day
Premium pay
30% of regular wage
Implementing rules
Sec.1. General statement on coverage,
Rule III, Book III, IRR
This Rule shall apply to all employers whether
operating for profit or not, including public
utilities operated by private persons.
Sec.2. Business on Sundays/Holidays.,
Rule III, Book III, IRR
All establishments and enterprises may operate
or open for business on Sundays and holidays
provided that the employees are given the weekly
In
case
of
actual
or
impending
48
e.
f.
D. HOLIDAYS
Art. 94. Right to holiday pay.
a. Every worker shall be paid his regular daily
wage during regular holidays, except in retail
49
and
service
establishments
regularly
employing less than ten (10) workers;
b. The employer may require an employee to
work on any holiday but such employee shall
be paid a compensation equivalent to twice
his regular rate; and
c.
b. Service establishment
One principally engaged in the
sale of service to individuals for
their own or household use and
is generally recognized as such105
3. Domestic helpers and persons in the
personal service of another
4. Managerial employees
5. Field personnel and other employees
whose time and performance is
unsupervised by the employer including
those who are engaged on task or
contract basis, purely commission basis
or those who are paid a fixed amount for
the performing work irrespective of the
time consumed in the performance
thereof.
a. Retail Establishment
102 Amended by RA 9492
106 RA 9492
50
Unless otherwise modified by law, and orThe following are hereby recognized as legal
proclamation, the following regular holidays andMuslim holidays:
special days shall be observed in the country:
a. 'Amun Jadid (New Year), which falls on the
first day of the first lunar month of
Muharram;
Regular Holidays
b. Maulid-un-Nabi (Birthday of the Prophet
1. New years Day. Jan 1
Muhammad), which falls on the twelfth day
2. Maundy Thursday
of the third lunar month of Rabi-ul-Awwal;
3. Good Friday
4. Eidul Fitr
c. Lailatul Isra Wal Mi'raj (Nocturnal Journey
5. Araw ng Kagitingan
and Ascension of the Prophet Muhammad),
(Bataaan and Corregidor Day).
which falls on the twenty-seventh day of the
Monday nearest Apr 9
seventh lunar month of Rajab;
6. Labor Day. Mon nearest May 1
7. Independence Day. Mon nearest Jun 12 d. 'Id-ul-Fitr (Hari Raya Pausa), which falls on
8. National Heroes Day. Last mon of Aug
the first day of the tenth lunar month of
9. Bonifacio Day. Mon nearest Nov 3
Shawwal, commemorating the end of the
10. Christmas Day. Dec 25
fasting season; and
11. Rizal Day. Mon nearest Dec 30
e.
When work
Premium pay
performed
Provided, That for movable holidays, the
200% of regular daily
President shall issue a proclamation, at least Work on any regular
holiday
wage
six months prior to the holiday concerned,
the specific date that shall be declared as a Work on any regular
200% of regular daily
holiday
nonworking day:
wage
+
+
overtime
30% of such amount
(if it exceeds 8 hours)
Provided, however, The Eidul Adha shall be Work on any regular
200% of regular daily
celebrated as a regional holiday in the holiday which falls on
wage + 30% of such
Autonomous Region in Muslim Mindanao." the scheduled rest day
amount
Work on any regular
Regular holidayholiday which falls on
on0restday rate (200%
Muslim holidays
the scheduled rest day, of regular daily wage +
+
30% of such amount)
Article 169. Official Muslim holidays, PD
1083 Code of Muslim Personal Laws
107 San Miguel Corp v CA (2002)
51
overtime
Work on special
holidays
Work on special
holiday
+
Overtime
+
30% of the rate
Regular daily wage
+
30% of regular wage
Regular daily wage
+
50% of the regular
daily wage
1.
1.
52
when:
2.
Not entitled
I.
In case of absences
53
II.
2.
3.
III.
1.
Piece workers
Philosophy underlying the exclusion of piece workers
from the 8-hour law is that said workers are paid
depending upon the work they do irrespective of the
amount of time employed in doing said work.114
Seafarers
Any hours of work or duty including hours of watchkeeping performed by the seafarer on designated rest
days and holidays shall be paid rest day or holiday
pay.115
Seasonal workers
Seasonal workers who do not work during off-season
are not entitled to pay for the regular holidays
occurring during their off-season. Workers assigned
to skeleton crews that work during the off-season
have the right to be paid on regular holidays falling
in that duration.
E. LEAVES
114 Red V Coconut Products Ltd., v. CIR, 1966
54
employees.116
Entitlement
3. Managerial employees as defined in116 Sec. 1, Rule V, Implementing Rules and Regulations
Book 3 of this Code
4. Field personnel and other employees
whose performance is unsupervised by117 Cebu Institute of Technology v. Ople, 156 SCRA 531
the employer including those who are
engaged on task or contract basis, purely
commission basis, or those who are paid
a fixed amount for performing work 118 Makati Haberdashery v NLRC (1989)
irrespective of the time consumed in the
performance thereof
5.
55
Requisites
1. Employment
2. Marriage to and cohabitation with his legitimate
spouse
3. Delivery of the legitimate spouse
Who is entitled to paternity leave
56
1.
57
4. Educational benefits
5. Housing benefits
6. Medical assistance
F. SERVICE CHARGES
Art. 96. Service Charges
All service charges collected by hotels,
restaurants and similar establishments shall be
distributed at the rate of eighty-five percent
(85%) for all covered employees and fifteen
percent (15%) for management. The share of the
employees shall be equally distributed among
them. In case the service charge is abolished, the
share of the covered employees shall be
considered integrated in their wages.
Coverage
This rule shall apply only to establishments which
collect service charges such as: 130
1.
VAWC Victims
A victim of VAWC who is employed shall be entitled
to a paid leave of up to ten (10) days in addition
to other paid leaves under the Labor Code and Civil
Service Rules and Regulations and other existing
laws and company policies:
1.
Availment
In addition to other paid leaves under existing labor
laws, company policy, and/or collective bargaining
agreement, the qualified victim employee shall be 131 Sec 2, Rule VI, Book 3, IRR
entitled to a leave of up to 10 days with full pay,
58
Rationale
1. To further protect the level of real wages
Service charges are distributed in accordance with
from the ravage of world-wide inflation
the following percentage of sharing:
2. There has been no increase in the legal
1. Eighty-five percent (85%) for the employees to
minimum wage rates since 1970
be distributed equally among them; and The
shares shall be distributed to employees not less
3. The Christmas season is an opportune time
than once every 2 weeks or twice a month at
for society to show its concern for the plight
intervals not exceeding 16 days.
of the working masses so they may properly
celebrate Christmas and New Year.
2. Fifteen percent (15%) for the management to
answer for losses and breakages and, at theCoverage
discretion of the management, distribution to General Rule
managerial employees.
All employers are hereby required to pay all their
rank and file employees a 13th month pay not later
Integration
than Dec 24 of every year,
Provided that they have worked for at least one (1)
Sec. 5. Integration of service charges.,
month during a calendar year.
Rule VI, Book III, IRR
In case the service charges is abolished the share
Exceptions
of covered employees shall be considered
Exempted Employers
integrated in their wages. The basis of the
1. Government, its political subdivisions,
amount to be integrated shall be the average
including GOCCs except those operating
monthly share of each employee for the past
essentially as private subsidiaries of the
twelve (12) months immediately preceding the
Government
abolition of withdrawal of such charges.
2. Employers
already
paying
their
employees a 13th month pay or more in
a calendar year or its equivalent at the
time of this issuance
Equivalent includes:
a. Christmas bonus, mid-year bonus,
cash bonuses
b. and other payments amounting to
not less than 1/12 of the basic salary
c. but shall NOT INCLUDE cash and
stock dividends, cost of living
132
59
Exception
Where the workers are paid on
piece-rate basis in which case the
employer shall grant the requiredii.
13th month pay to such workers.
1.
Workers paid on a piece-rate
basis: those who are paid a
standard amount for every piece or
unit of work produced that is more 2.
or less regularly replicated, without
regard to the time spent in
producing the same.
Exception
Employer may give to his employees half of
the required 13th Month Pay before the
opening of the regular school year and the
other half on or before the 24th of December
every year.
The frequency of payment of this monetary
benefit may be the subject of agreement
between the employer and the recognized CBA of
the employees.
3. Those
with
Multiple
Employers
Government Employees working part time in a
private enterprise, including private educational
institutions, as well as Employees working in two
or more private firms, whether on full or part
time bases, are entitled to the required 13th
Base amount
Month Pay from all their private Employers
Basic salary shall include:
regardless of their total earnings from each or all
1. Cost
of
living
allowances
(COLA)
their Employers.
integrated into the basic salary of a
covered employee pursuant to EO 178.
4. Private School Teacher
Private school teachers, including faculty
2. All remunerations or earning paid by this
members of universities and colleges, are
employer for services rendered.
entitled to the required 13th month pay,
regardless of the number of months they teach or
3. But not the allowances and monetary
are paid within a year, if they have rendered
benefits which are not considered or
service for at least one (1) month within a year.
integrated as part of the regular or basic
salary, such as the cash equivalent of:
Overload pay is NOT included in the
computation for 13th month pay; overload is not
a. unused vacation and sick leave credits,
overtime as it is additional work done within the
b. overtime,
normal shift133
c. premium,
d. night differential
5. Resigned or Separated Employee
e. holiday pay and, and
An Employee who has resigned or whose services
f. cost-of-living allowances.
Amount and Date of Payment
Minimum Amount
1/12 of the total basic salary earned by an employee
within a calendar year for the year 1987
Time of payment
60
Terminated Employees
The payment of the 13th month pay may be
demanded by the employee upon the cessation of
employer- employee relationship. 135
Additional Rules
1. Commissions
If the commissions may be properly
considered part of the basic salary, then they
should be INCLUDED. If they are not an
integral part of the basic salary, then they
should be EXCLUDED. 136
61
A. WOMEN WORKERS
General rule
No woman should work during the following periods.
Industry
Industrial
Commercia
l
Prohibited hours
10 pm 6 pm (8 hrs)
12 mn to 6 am (6 hrs)
Coverage
Shall apply to all employers, whether operating for
At nighttime unless she is given a
Agricultural
profit or not, including educational, religious and
rest period of not less than 9 hrs144
charitable institutions
Exceptions:145
Exceptions
The prohibitions prescribed by the preceding
The government and its subdivisions
Article shall not apply in any of the following
including GOCCs and to the employers of
cases:
household helpers and persons in their
personal service insofar as such workers are
1. In cases of actual or impending
concerned.143
emergencies caused by serious
accident,
fire,
flood,
typhoon,
earthquake,
epidemic
or
other
disasters
i. Prohibited acts
or
calamity,
to
prevent
loss
of
life or
1. Night work
property,
or
in
cases
of
force
majeure
or
2. Discrimination
imminent danger to public safety;
3. Stipulation against marriage
4. Discharge to prevent enjoyment of benefits
and on account of pregnancy
5. Discharge on account of Testimony
a. Night work
RA 10151(21 June 2011) repealed Art 130 & 131
a.
62
3.
e. Discharge on Account of
Testimony
Sec 13(d), Rule XII, Book III
It shall be unlawful for any employer to
discourage any woman or child or any other
employee for having filed a complaint or having
testified or being about to testify under the code.
63
b.
c.
To establish a nursery in a
workplace for the benefit of the women
employees therein; and
d.
To
determine
appropriate
minimum age and other standards for
retirement or termination in special
occupations such as those of flight
attendants and the like.
Contribution
Who has paid at least 3 monthly contributions in
the 12-month period immediately preceding the
semester of her childbirth, or miscarriage
6. Notice
Employee notified employer of her pregnancy
and the probable date of her childbirth, which
notice shall be transmitted to the SSS in
accordance with the rules and regulations it may
provide.
Benefits
Adaily maternity benefit equivalent to 100% of her
average daily salary credit for:
3. 60 days for normal delivery
4. 78 days for caesarean delivery
This benefit shall not be included in the
computation of 13th month pay as it is granted
to an employee in lieu of wages which is the basis for
computing 13th month.
Avaliment
Other conditions
1 Employer shall advance the payment subject to
reimbursement by the SSS within 30 days from
filing of leave application.
146 Sec 14-A, RA 1161 as amended by RA 7322 and RA 8282
64
65
Exceptions:
1. Child works directly under the sole
responsibility of his parents or
legal guardian and where only members
of the ERs family are employed,
provided:
a. his employment does NOT
endanger his life, safety,
health and morals,
b. nor
impairs
his
normal
development, and
c. the parent or legal guardian shall
provide the said minor child with the
prescribed primary and/or
secondary education149
2. Childs employment or participation in
public entertainment or information
through cinema, theater, radio or television
is essential, provided that:150
a.
B. MINOR WORKERS
Article 139. Minimum employable age.
No child below fifteen (15) years of age
shall be employed, except when he works
directly under the sole responsibility of his
parents or guardian, and his employment does
not in any way interfere with his schooling.
Any person between fifteen (15) and
eighteen (18) years of age may be
employed for such number of hours and
such periods of the day as determined by the
Secretary of Labor and Employment in
appropriate regulations.
General Rule
Children below 15 shall NOT be employed 148
66
Age Bracket
Below 15 y
15 to below 18
Daily Max
4 hours
8 hours
Weekly Max
20 hours
40 hours
C. EMPLOYMENT OF
HOUSEKEEPERS
Domestic or household Service, defined
Art 141. Coverage
This Chapter shall apply to all persons rendering
services in households for compensation.
"Domestic or household services" shall
mean service in the ER's home, which is
usually necessary or desirable for the
maintenance and enjoyment thereof and
includes ministering to the personal comfort and
convenience of the members of the ER's.
the
67
2.
3.
Provided,
further,
That
those
househelpers who are receiving at least
One thousand pesos (P1,000.00) shall
be covered by the Social Security
System (SSS) and be entitled to all the
benefits provided thereunder. (As
amended by Republic Act No. 7655,
August 19, 1993)
5.
68
househelper159
6. Board,
lodging
and
medical
attendance shall be furnished by employer
Art. 148. Board, lodging, and
medical attendance
The employer shall furnish the
househelper, free of charge, suitable
and sanitary living quarters as well as
adequate food and medical attendance.
Art 1690, Civil Code
The head of the family shall furnish,
free of charge, to the house helper,
suitable and sanitary quarters as well as
adequate food and medical attendance.
7.
Household work
Non-hazardous work for persons between
15-18 years old.160
69
D. EMPLOYMENT OF HOMEWORKERS
TOPIC K-I. Definition
Note: DO 5, DOLE (February 4, 1992), is now Rule
XIV, Book III of the IRRI.
Homeworker, defined
Sec. 1, Rule XIV, Book III, IRR
Homeworker applies to any person who
performs industrial homework for an employer,
contractor, or sub-contractor.
70
2.
Regional Office
assistance
to
organizations170
1. Right to form, join or assist organizations 161 iv. Conditions for deduction from
homeworkers earnings
2. Right to acquire legal personality and the
rights and privileges granted by law to
legitimate labor organizations upon issuance
Sec. 8. Deduction, Rule XIV, Book III
of the certification of registration162
3. Immediate payment upon ERs receipt ofNo deduction from the homeworkers earnings
for the value of materials lost, destroyed or
finished goods or articles163
4. SSS, MEDICARE and ECC premiumdamaged unless:
contributions shall be deducted from their
pay
and
shall
be
remitted
by 1. Homeworker is clearly shown to be
164
responsible for loss or damage
ER/contractor/subcontractor to the SSS
2.
Reasonable opportunity to be heard
5. Employer may require homeworker to redo
3.
Amount of deduction is fair and reasonable,
work
improperly
executed
without
and does not exceed actual loss or damage
additional pay165
6. Employer need not pay homeworker for any4. Deduction does not exceed 20% of
homeworkers weekly earnings
161 Sec 3, Rule XIV, Book III
71
VI.
Termination of employment
Exceptions:173
1. When it is for a just cause174 or
2. When authorized by law175
A. GENERAL CONCEPTS
Security of Tenure
Art 278. Coverage
The provisions of this Title shall apply to all
establishments or undertakings, whether for
profit or not.
1.
72
Nature of right
Requisites of a Valid Termination185
Security of tenure is a right of paramount
1. Substantive due process
value guaranteed by the Constitution . 179 It
Legality of the act of dismissal as
stands to reason that a right so highly ranked as
provided under articles 282 to 284 of the
security of tenure should not lightly be denied on
Labor Code.
mere speculation.180
2. Procedural due process
Dismissal based on loss of trust and confidence
Legality in the manner of dismissal
arising from alleged misconduct of employee is
with due observance of the procedural
not to be used as a shield to dismiss an employee
requirements.
arbitrarily.181
Measure of Penalty
Termination without just cause entitles a worker Employees length of service is taken into
to reinstatement regardless of whether he was consideration in imposing the penalty to be
accorded due process.
meted an erring employee.186 But if it is to be
regarded as a justifying circumstance in
Termination for a just cause even without moderating the penalty of dismissal, it will
procedural due process, does not warrant actually become a prize for disloyalty, perverting
reinstatement. The employer incurs only liability the meaning of social justice and undermining the
for damages.182
efforts of labor to cleanse its ranks of all
undesirables.187
Coverage
The penalty must be commensurate with
All workers are entitled to security of tenure. 183
the act, conduct or omission imputed to the
Confidential and Managerial employees are also employee and must be imposed in connection
entitled to security of tenure. They cannot be with the disciplinary authority of the employer.188
arbitrarily dismissed at any time, and without While the employer has the inherent right to
discipline, including that of dismissing its
employees, this prerogative is subject to the
regulation by the State in the exercise of its police
178 Veterans Security Agency Inc. v Gonzalvo, Jr.
power.189
179 Art 11, Sec 9, 1987 Constitution. The State shall afford 184 Inter Oriental Maritime Enterprises, Inc. v NLRC 235 SCRA
protection to labor and "shall assure the rights of workers to . . . 268 (1994)
security of tenure"
185 Shoemart v NLRC, 176 SCRA 385 (1989); Ting v CA, 494
180 Llosa Tan v Silahis International Hotel 181 SCRA 738 (1990); SCRA 610 (2006)
City Service Corp. Workers Union v City Services Corp 135 SCRA
564 (1985)
186 Inter Oriental Maritime Enterprises, Inc. v NLRC 235 SCRA
268 (1994)
181 Llosa Tan v Silahis International Hotel 181 SCRA 738 (1990);
73
B. TERMINATION OF EMPLOYMENT
BY EMPLOYEE
Art. 285. Termination by employee.
a. An employee may terminate without just
cause the employee-employer relationship
by serving a written notice on the employer
at least one (1) month in advance. The
employer upon whom no such notice was
served may hold the employee liable for
damages.
b. An employee may put an end to the
relationship without serving any notice on
the employer for any of the following just
causes:
1. Serious insult by the employer or his
representative on the honor and person
of the employee;
2. Inhuman
and
unbearable
treatment accorded the employee by
the employer or his representative;
3. Commission of a crime or offense
by the employer or his representative
against the person of the employee or
any of the immediate members of his
family; and
4. Other causes analogous to any of the
foregoing.
i. Resignation
Coverage
Any employee may be retired upon reaching the
Resignation, defined
Voluntary resignation is the act of an employee, whoretirement age established in the collective
agreement
or
other
applicable
finds himself in a situation in which he believes that bargaining
personal reasons cannot be sacrificed in favor of the employment contract.
exigency of the service; thus he has no other choice
but to disassociate himself from his employment.190
74
Exempted
Retail,
service
and
agricultural
establishments or operations employing
not more than (10) employees or
workers
In the absence of a CBA or an applicable
employment contract:
1. When retirement is optional
Age of sixty (60) years or more, but not
beyond sixty-five (65) years
2. Compulsory
65 years old
a. Serious
Misconduct
Willful disobedience
or
Misconduct
Misconduct, defined
How much are employees entitled to as Improper or wrong conduct. It is the transgression of
retirement pay
some established and definite rule of action, a
At least one-half (1/2) month salary for every year of forbidden act, a dereliction of duty willful in
service, a fraction of at least six (6) months being character, and implies wrongful intent and not mere
considered
as
one
whole
year.
error in judgment.195
Unless the parties provide for broader inclusions, theRequisites for serious misconduct196
1. Conduct must be serious
term one-half (1/2) month salary shall mean fifteen
2. Must relate to the performance of the
(15) days plus one-twelfth (1/12) of the 13th month
employees duties
pay and the cash equivalent of not more than five (5)
3.
Must show that the employee has become
days of service incentive leaves.
unfit to continue working for the
employer
How long is the service requirement for an
employee to be entitled to retirement pay
Employee must have served at least five (5) years in Examples of Serious Misconduct justifying
termination
the said establishment
1. Falsification of time records197
2. Immorality. Teachers must adhere to the
exacting standards of morality and decency.
A teacher, both in his official and personal
conduct, must display exemplary behavior.198
C. TERMINATION OF EMPLOYMENT
BY EMPLOYER
i. Substantive Requirement:
Just Causes
Art. 282. Termination by employer.
An employer may terminate an employment for
any of the following causes:
Serious
misconduct
or
willful
disobedience by the employee of the lawful
orders of his employer or representative in
connection with his work;
Gross and habitual neglect by the
employee of his duties;
Fraud or willful breach by the employee
of the trust reposed in him by his employer
75
203 JGB and Associates, Inc. v NLRC (1996), 254 SCRA 457
202 First Dominion Resources Corporation v Penaranda, 480 207 Eastern Overseas Employment Center, Inc. v Bea, GR 143023
SCRA 504 (2006)
(2005)
76
Repeated
and
habitual
infractions,
committed
despite several
warnings,
constitute gross misconduct. Habitual
absenteeism without leave constitute gross
negligence and is sufficient to justify
termination of an employee.214
Employees infractions are worse than
inefficiency. They border on dishonesty
constituting serious misconduct.215
A series of irregularities when put together
may constitute serious misconduct. We also
held that gross neglect of duty becomes
serious in character due to frequency of
instances. There can be no good faith in
intentionally and habitually incurring
unexcusable absences.216
77
223
(Cashiers, auditors,
Breach must be willful and not ordinary Rules of dismissal for managerial
employees are different from those
breach219
governing ordinary employees.224
2. Employee hold a position of trust and
confidence
Managerial and
3. Must be in relation to the work
Rank and file
confidential
performed
employees
employees
4. There must exist substantial evidence,
and should not be based on mere surmises, Employers are generally Termination based
allowed
a
wider on the ground of
speculations and conjectures
latitude of discretion loss of trust and
in
terminating confidence requires
Breach must be willful and not ordinary
220
managerial
personnel, proof
of
breach
or those similar rank, involvement in the
functions events in question225
The breach is willful if it is done intentionally, performing
knowingly and purposely without justifiable which, by their nature,
require the employers
excuse.
There must be a cause for the loss of confidence. full trust and confidence
It must rest on some basis which must be
convincingly established. An employee must not Strained Relation Rule
be dismissed on mere presumptions or It would be unjust and inequitable to compel an
employer to continue with the employment of a
suppositions.221
person who occupies a managerial and sensitive
position despite loss of trust and confidence
Employee holds a position of trust and
The relationship must be considered seriously
confidence
strained,
foreclosing
the
remedy
of
226
reinstatement.
General rule: dismissal on the ground of loss of
1.
78
1.
2.
3.
4.
Spouse
Ascendants
Descendants
Legitimate, natural or adopted siblings
of the employer or of his relative by
affinity or consanguinity within the 4th
civil degree
d. Commission of a crime
Commission of a crime
Requisites of commission of a crime
Commission of a crime should be made against:
1. The employer himself or
2. Any immediate member of his family233
228 Gubac v NLRC, 187 SCRA 412 (1990)
231 Ocean Terminal Services, Inc. v NLRC, 197 SCRA 491 (1991)
79
g. Constructive Dismissal
f. Others
244 Hyatt Taxi Services, Inc v. Catinoy, 2002, 359 SCRA 686;
Gilles v CA, GR 149273, 2009
80
h. Preventive Suspension
Nature
A disciplinary measure for a protection of the
companys property pending investigation of any
alleged malfeasance committed by the employee.
Preventive suspension is not a penalty.
j. Promotion
i. Transfer
247 La Rosa v Ambassador Hotel, GR 177059, 2009
81
Promotion, defined
The advancement from one position to another with
an increase in duties and responsibilities as
authorized by law, and usually accompanied by an
increase in salary.255
3.
4.
5.
6.
Retrenchment
Closing or cessation of operation
Disease or illness
Totality of infractions
For there to be a promotion is that there must be Art. 283. Closure of establishment and
an advancement from one position to anotherreduction of personnel.
or an upward vertical movement of the
The employer may also terminate the
employees rank or position. Any increase in
employment of any employee due to the
salary should only be considered incidental but
installation of labor-saving devices, redundancy,
never determinative of whether or not a
retrenchment to prevent losses or the closing or
256
promotion is bestowed upon an employee.
cessation of operation of the establishment or
undertaking unless the closing is for the purpose
There is no law that compels an employee to of circumventing the provisions of this Title, by
accept a promotion for the reason that a serving a written notice on the workers and the
promotion is in the nature of a gift or reward, Ministry of Labor and Employment at least one
which a person has a right to refuse.257
(1) month before the intended date thereof. In
case of termination due to the installation of
k. Residency training
labor-saving devices or redundancy, the worker
affected thereby shall be entitled to a separation
Residency or resident physician position in apay equivalent to at least his one (1) month pay
medical specialty is never a permanent one. or to at least one (1) month pay for every year of
Residency connotes training and temporaryservice, whichever is higher. In case of
status. It is a step taken by a physician right afterretrenchment to prevent losses and in cases of
post-graduate internship prior to his recognition closures or cessation of operations of
establishment or undertaking not due to serious
as a specialist or sub specialist in a given field.
business losses or financial reverses, the
The appointment was for a definite andseparation pay shall be equivalent to one (1)
renewable period which, when it was notmonth pay or at least one-half (1/2) month pay
renewed, did not involve a dismissal but an for every year of service, whichever is higher. A
fraction of at least six (6) months shall be
expiration of the petitioner's term.258
considered one (1) whole year.
Termination
of
employment
due
to
authorized causes; procedural steps required
1. Written notice to DOLE 30 days prior to the
intended date of termination
2. Written notice to employee(s) concerned 30
days prior to the intended date of
termination
3. Payment of separation pay:
For Redundancy and installation of
labor saving devices
1 month pay, or 1 month pay for every year of
service (a fraction of 6 months or more to be
considered 1 year), whichever is higher
82
a. Labor-Saving Devices
redundancy
b. Redundancy
264 Edge Apparel Inc. v NLRC, 286 SCRA 302, 1998
260 Edge Apparel Inc. v NLRC, 286 SCRA 302, 1998
265 Edge Apparel Inc. v NLRC, 286 SCRA 302, 1998; Lowe Inc v
CA, GR 164813, 2000
83
Cause of retrenchment
Normally resorted to by management during periods
of business reverses and economic difficulties
occasioned by such events as recession, industrial
depression, or seasonal fluctuations.
Retrenchment as a means of last resort
Retrenchment is only a measure of last resort, when
other less drastic means have been tried and found
to be inadequate.268
and
d. Closing or
operation
cessation
of
1.
269 Flight Attendants & Stewards Association of the Philippines v 273 PSBA v NLRC, 223 SCRA 305 (1993)
PAL, GR 178083, 2008
274 Cheniver Deco Print Technics Corp. v NLRC, 325 SCRA 758
(2000)
84
Due to
NOT due
serious
to serious
business
business
losses
losses
Good faith
Legal
Legal
dismissal
dismissal
No
Employee is
separation
entitled to
benefits
separation
pay.
Closure of
business done
in bad faith
Illegal dismissal
Employee is
entitled to
reinstatement
and payment of
full wages.
If reinstatement
not possible,
employee is
entitled to full
backwages and
separation pay
e.
Temporary Closure
275 Eastridge Golf Club Inc. v Eastridge Golf Club Inc. Labor
Union, GR 166760, 2008
279 Valdez v NLRC, 286 SCRA 87, 1998
85
Cause
Redundancy
Retrenchment
Closure of business
Management prerogative
Service capability of the
workforce
is
in
excess of what is
reasonably needed to
meet the demands of the
business enterprise
Management prerogative
Effected by management during
periods of business recession,
industrial depression, seasonal
fluctuations, lack of work or
considerable reduction in the
volume of the employers business.
Resorted to by an employer to
avoid or minimize business
losses.
Management prerogative
Carried out to either stave off the
financial ruin or promote the
business interest of the employer.
Art 283 authorizes termination of
employment due to business
closure, regardless of the
underlying
reasons
and
motivations therefor, be it
financial losses or not.
2.
3.
4.
Justification
That
retrenchment
is
reasonably necessary and
likely to prevent business
losses which, if already
incurred, are not merely de
minimis, but substantial,
serious281, actual and
real, or if only expected, are
reasonably
imminent
as
perceived objectively and in
good faith by the employer;
2. Written notice served on
both the employee and the
DOLE at least one month
prior to the intended date of
termination;
3. Payment of separation
pay equivalent to at least one
month pay or at least one
month pay for every year of
service, whichever is higher;
4. Good faith in exercising
managements prerogative to
retrench employees for the
advancement of its interest
and not to defeat or
circumvent the employees
right to security of tenure;
and,
5. Used
of
fair
and
reasonable criteria in
ascertaining who would be
dismissed and who would be
retained
among
the
employees, such as status,
efficiency,
seniority282,
physical fitness, age, and
financial hardship for certain
workers.
Employer must prove serious
business losses.
86
overmanned.
Evidence
that may be
proffered
f.
Disease
87
1.
292 Stellar Industrial Services, Inc. v NLRC, 252 SCRA 323 (1996)
287 Savallana v IT International Corp., 356 SCRA 451 (2001)
293 Tower Industrial Sales v CA, 487 SCRA 556 (2006), citing
Lopez v NLRC, 297 SCRA 508 (1998)
88
Procedural Requirement
Basis for
Requirements
termination
Twin-notices and
Art 282: Just Cause
1.
2.
3.
1.
2.
1.
2.
3.
4.
5.
Labor-saving devices
Redundancy
Retrenchment
Closing or cessation of
operation
Disease or illness
hearing rule
1. Notice specifying
the grounds for
which dismissal is
sought
2. Hearing or
opportunity to be
heard
3. Notice of the
decision to
dismiss
1. Notice to:
a. Employee
b. DOLE
At least 30 days prior
to the effectivity of the
separation
i. General concepts
Serious misconduct or
willful disobedience
Gross and habitual
neglect of duties
Fraud or willful breach
Commission of a crime
or offense
Analogous causes
89
a.
authorized
cause
process
Dismissal
Employers
liability
Legal
No liability
Separation
pay if dismissal
is due to
authorized cause
Illegal
Reinstatement
Full backwages
Separation
pay if
reinstatement not
possible
Illegal
Reinstatement
Full backwages
Exception:298
a formal hearing or conference becomes
mandatory only when:
Separation
pay if
reinstatement not
possible
Ruling
Year
Prior to
1989
1989
Dismissal
Illegal
Legal
Damages
Legal
Full backwages
Wenphil Corp
v NLRC
2000
Serrano v
NLRC
Damages due to
non-compliance
with procedural
requirements
of
1.
Legal
Separation
pay if dismissal
is due to
authorized cause
2004
Agabon v
NLRC
Legal
Nominal damages
90
commit
dismissal.
illegal
Wenphil-Serrano Doctrine
iv. Degree of proof
Serrano modifies Wenphil. The Wenphil
doctrine was meant to discourage dismissal
without due process. But the purpose is not All administrative determinations require only
substantial proof and not clear and
achieved as many employers dismiss now and
convincing evidence.304
pay later. Employer is liable for the full
backwages although the dismissal is not As a general rule, employers are allowed a
wider
latitude
of
discretion
in
outright illegal since it is based on a valid
terminating the services of managerial
reason.
employees who perform functions which by
their nature require the employers' full trust and
The employee remains dismissed. The dismissal
confidence, thus, existence of basis for believing
is merely defective or ineffectual. The doctrine
that the employee has breached the trust of the
applies to dismissals under Art 282, 283 and
employer is sufficient and does not require proof
284.
beyond reasonable doubt. In fact, it has been
held that when the employer has ample
Agabon abandoned Serrano ruling
reason to distrust an employee, a labor
The doctrine in Serrano had already been
tribunal cannot deny the employer the
abandoned in Agabon v. NLRC by ruling that if
authority to dismiss him.305
the dismissal is done without due process, the
employer should indemnify the employee
v.
with nominal damages.301
Prescription
An action for reinstatement by reason of illegal
dismissal is one based on an injury which may be
brought within 4 years from the time of
dismissal.306
Burden of Proof303
Employee
Employer
Must first establish the Burdened to prove
fact of his or her that they did not
91
i. Reinstatement
Reinstatement, defined
The restoration to a state or condition from which
one had been removed or separated.309
General rule:
An employee illegally dismissed is entitled to
reinstatement.
Exceptions:
1. Closure of business
Reinstatement presupposses that the
previous position from which one had
been removed still exists, or that there is
an unfilled position more or less of
similar nature as the one previously
occupied by the employee.
When the position no longer exists,
order of reinstatement is improper. The
law itself cannot exact compliance with
what is impossible310
2. Prayer is for separation pay in lieu
of reinstatement
307 Condo Suite Club Travel, Inc. v NLRC, 323 SCRA 679 (2000);
Golden Donuts, Inc. v NLRC, 322 SCRA 294 (2000)
312 Pheschem Industrial Corporation v Moldez, 458 SCRA 339
(2005)
308 Ranara v NLRC, GR 100969, 1992
313 Electruck Asia, Inc. v Meris, 435 SCRA 310 (2004)
309 Pheschem Industrial Corporation v Moldez, 458 SCRA 339,
2005
314 Divine Word High School v NLRC, 143 SCRA 346 (1986)
92
93
a.
Computation of Backwages
1.
b.
c.
d.
e.
Redundancy
Retrenchment
Cessation of the employers business
Disease
Though
validly
dismissed, employee may
be awarded as some
equitable
relief
in
consideration of the past
services rendered where
322 St. Thereseas school of Novaliches Foundation v NLRC dismissal was due to
(1998)
330 BPI and BPI Family Bank v NLRC and Arambulo, GR 179801
(2010)
94
Backwages
Granted to an illegally
dismissed employee
Granted to an illegally
dismissed employee
Granted
reinstatement
longer feasible.
Granted
reinstatement
where
is
no
Payment of backwages is
a form of relief that
restores the income that
was lost by reason of
unlawful dismissal334
with
95
fraud
constitutes an act oppressive to
labor
done in a manner contrary to good
customs and public policy
2.
3.
4.
Exemplary damages
Awarded if the dismissal is effected in a
wanton, oppressive or malevolent
manner.340
Attorneys fees
Not recoverable when there is no sufficient
showing of bad faith.
Justified when claimant is compelled to litigate
with 3rd parsons or to incur expenses to protect
his interest by reason of an unjustified act of
the party against whom it is sought.341
Attorneys fees
Not recoverable when there is no sufficient
showing of bad faith.
Justified when claimant is compelled to litigate
with 3rd parsons or to incur expenses to protect
his interest by reason of an unjustified act of
the party against whom it is sought.342
Liability of Corporate officers
F. RETIREMENT
Art 287. Retirement
Any employee may be retired upon reaching the
retirement age established in the collective
bargaining agreement or other applicable
employment contract.
In case of retirement, the employee shall be
entitled to receive such retirement benefits as he
may have earned under existing laws and any
collective bargaining agreement and other
agreements: Provided, however, That an
employees retirement benefits under any
collective bargaining and other agreements shall
not be less than those provided therein.
339 M+W Zander Philippines, Inc. v Enriquez, GR 169173 (2009) 343 Bogo Medelin Sugarcane Planters Association v NLRC (1998)
96
Termination
Retirement
mode
of
ending mode
of
ending
employment
employment
Statutory, governed by Contractual, based on
the Labor code and a bilateral agreement
Violation of this provision is hereby declared
other related law as to of the employer and
unlawful and subject to the penal provisions
its grounds, benefits employee
under Article 288 of this Code.
and procedure
Benefits
resulting Article 287 of the
from
termination Labor Code gives
vary, depending on leeway to the parties
to stipulate above a
A retirement plan in a company partakes the the cause
floor of benefits
nature of a contract, with the employer and the
employee as the contracting parties. It creates a
contractual obligation in which the promise to
VII. Management Prerogative
pay retirement benefits is made in consideration
of the continued faithful service of the employee
Management Prerogative, defined
for the requisite period.
Act by which one directing a business is able to
RA 7641
Age requirement
1. Compulsory
Upon reaching 65 years of age; with at least 5
years of service
2. Optional
Upon reaching 60 years of age; with at least 5
years of service; at the option of the employee
97
Discipline
In revising the employees Code of Conduct which
would have repercussions to their security of tenureChange of working hours
and deprive them of their livelihood the company The management is also empowered to change their
so
must have participation in the decision and policy employees work schedule whenever exigencies
356
require
provided
that
it
is
done
in
good
faith.
making process of affecting their rights, duties, and
welfare.351
Marital discrimination
Section 136, Title III, Chapter I,
Transfer of employees
Stipulation Against Marriage
Business enterprises have the right to transfer
employees from one work station to another where it It shall be unlawful for an employer to require as
a condition of employment or continuation of
deems the employee will be most useful and
productive. The limits as to transferring employees employment that a woman employee shall not
get married, or to stipulate expressly or
are as long as there is no unreasonable cause,
352
tacitly that
upon getting married,
a
inconvenience, and prejudice in their transfer.
woman employee shall be deemed resigned or
separated, or to actually dismiss, discharge,
Productivity standard
Failure to observe prescribed standards of work or to discriminate or otherwise prejudice a woman
fulfil
reasonable
work assignments
due
toemployee merely by reason of her marriage.
inefficiency may constitute just cause for dismissal.
Such inefficiency is understood to mean failure to
attain work goals or work quotas, either by failing toPost-employment ban
complete the same within the allotted reasonable Whether such an agreement would be held valid and
period, or by producing unsatisfactory results. This binding will depend on its reasonableness in relation
management prerogative of requiring standards may to the parties concerned, as well as to its public
be availed of so long as they are exercised in good policy.
faith for the advancement of the employer's
interest.353
Grant of bonus
356 Union Carbide Labor Union vs. Union Carbide Phils., Inc. 215
SCRA 554 (1992)
98
of
management
Constitution
Law
SSS and GSIS
Contracts (CBA)
General principles of fair play and
justice
99
Government Service
Insurance Act of 1997
RA 8291
RA 8291 amending PD 1146
Employer
Any person, natural or juridical, domestic or
foreign, who carries on in the Philippines any
trade business, industry, undertaking, and uses
the services of another person who is under his
orders as regards the employment, except
those considered as employer under the
GSIS.
Employee
Any person who performs services for an
employer who receives compensation for
such services, where there is an
Employer-employee relationship.
Self-employed
Any person whose income is not derived
from employment, including, but not limited
to:
a.
b.
c.
d.
No definition provided
self-employed professionals
partners and single proprietors of
businesses;
actors, directors, scriptwriters, news
correspondents
not
considered
as
employees under the above definition;
Individual farmers and fishers.
Dependents
a.
b.
Beneficiaries
Primary
a. Dependent spouse
b. Dependent children
100
100%.
Secondary
Shall only receive when the primary
beneficiaries are absent.
a. Dependent parents.
b. Other person designated by employee.
Compensation
all actual remuneration for employment,
including allowance, converted value of noncash
remuneration, except that portion already above
the max salary credit
(P 15,000).
Coverage
Compulsory
a. Employers
b. Employees not over 60 years including
household helpers with at least 1,000
monthly pay; and
c. Self-employed
Voluntary
a. Spouses who devote full time to
managing household and family
affairs;
b. OFWs recruited by foreign-based
employers;
c. Employees already separated from
employment or those self-employed
with no realized income for a given
month, who chose to continue with
contributions to maintain right to full
benefit.
Benefits
(tax-exempt)
1.
2.
3.
4.
5.
6.
7.
8.
9.
Monthly pension
Dependents pension
Retirement benefits
Permanent disability benefits
Death benefits
Funeral benefits
Loan
Sickness benefits.
Maternity Leave benefits.
1.
2.
3.
4.
5.
6.
Reporting
requirements
2.
1.
Monthly pension.
Retirement benefits
Permanent disability benefits
Funeral benefits
Loan GSIS website provides for this
Temporary disability benefits (similar to
sickness)
7. Separation benefits
8. Unemployment benefits
9. Survivorship benefits
10. Life insurance benefits
The employer shall report to the GSIS
the names of all its employees, their
corresponding employment status, positions,
salaries
and
such
other
pertinent
information, including subsequent changes
101
3.
To the Employee
Employee is still entitled to SSS benefits even if
the employer fails or refuses to remit the SSS
contributions.
To the Employer
Employer is liable to the employee and must:
1. Pay to SSS damages equivalent to the
benefits of those who die, become
disabled, get sick or reach retirement
age, except that in case of pension
benefits;
2. Pay all unpaid contributions plus a
penalty of 3% per month until paid;
and
3. Be held criminally liable through
an action commenced either by the SS
or the employee concerned.
To the Self-employed
a self employed person who fails to register with
SSS will also be fined and/or imprisoned.
However, in the event the self-employed person
does not realize earnings in a given month,
payment of SSS contributions for that month is
no longer required.
To the Self-employed
and
voluntary
102
Member
a self-employee and voluntary member who
fails to remit contributions after membership is
approved, may pay the monthly contribution
prospectively but is not allowed to pay
contributions retroactively from the month no
contribution payments were remitted.
Change of Membership Category:
1. Non-working
spouse
gets
employed or becomes selfemployed:
membership shall be
reclassified accordingly as employed
or self-employed or OFW.
2. The receipt of a lump sum
permanent total disability, who is
re-employed or has resumed selfemployment or as an OFW or Nonworking spouse, not earlier than one
year from the date of disability, shall
again be subject to compulsory
coverage and shall be considered a
new member.
Effective Date of
Coverage
Effective
separation from
employment
Dispute
Settlement
Prescriptive
Period
1. GSIS
2. CA (Rule 43)
3. SC (Rule 45); appeal does not stay execution.
4 years
SSS Benefits
GSIS Benefits
Monthly Pension
b.
c.
d.
Dependents Pension
103
a.
b.
c.
Not available
Retirement Benefits
Eligibility requirements
120 monthly contributions;
1. 15 years service;
Age
2. 60 years of age; and
3. Not receiving pension benefit from permanent total
65 years old; or
disability.
A member who has reached 60 years may also avail if
he is already separated from employment or has
Note: Retirement is compulsory for employees 65 years of age
ceased to be self-employed.
who have rendered at least 15 years of service; if employee has
less than 15 years of service, he may be allowed to continue in
accordance with civil service laws.
Benefits
Benefit: Choice between
Benefit: Choice between
a.
b.
a.
Monthly pension
Entitled to monthly pension from retirement until
death
b.
a.
b.
b.
Benefits
When a permanently disabled member dies. In 1. Permanent Total Disability Monthly income benefit
case the permanently disabled member dies, it would be
for life equal to basic monthly pension This is effective
given the same treatment as a retiree dying.
from date of disability;
For permanent partial disability, the pension is not
lifetime. (e.g. loss of thumb entitles member to only 10
months of pension, while loss of arm 50 months).
It shall be paid in lump sum if the period is less than 12
months.
To the ineligible
If member has rendered at least 3 years of service, then he
104
c.
Partial Disability
Paid according to GSIS prescribed schedule (this is
similar to the scheme used by SSS; refer to section II
subsection D-3 above); member availing of permanent
partial disability must satisfy condition E.1.a. above
regarding the disability not being due to his own fault and
either E.1.b.i. or E.1.b.ii. regarding employment status and
services rendered.
Death Benefits
Eligibility requirements
36 monthly contributions prior to the semester of death
When member dies, the primary beneficiaries are entitled to
only one of the following:
a.
Survivorship pension
1. If he was in the service when he died; or
2. Even if separated from the service, he has at least 3
years of service and has paid 36 monthly
contributions within the 5 years immediately
preceding death; or
3. Even if separated from the service, he has paid 180
monthly contributions prior to death.
b.
c.
Benefits
When member dies, the primary beneficiaries are entitled to
only one of the following:
To those ineligible lump sum benefit which shall be the
higher between the two:
a. Survivorship benefits
Beneficiaries are entitled to the following:
a. (monthly pension) x 12; or
1. Basic survivorship pension which is 50% of basic
b. (monthly pension) x (# of monthly contributions)
monthly pension; and
2. Dependent childrens pension not exceeding 50% of
the basic monthly pension.
Monthly pension to primary or secondary beneficiaries.
Funeral Benefits
Upon death of a member
Eligibility requirements
Entitled to this are the following:
a. Active member;
b. Member separated from service but still entitled to
105
c.
d.
funeral benefit;
Pensioner;
Retiree who at the time of retirement was of pensionable
age but opted to retire under RA 1616.
Benefits
Beneficiaries are entitled to a P20,000 funeral benefit
payable upon the death of a member or old age pensioner.
Loan
Social Security Commission Resolution No. 669.
Moreover, several SSS-issued circulars such as Circular No.
21-P and No. 52 pertain to the treatment of salary loans,
sometimes providing for more flexible payment terms or
condonation for delinquent payers; Santiago v. CA and
SSS, GR # L-39949 (1984) resolved an issue involving the
treatment of salary loan repayments
Benefits
Daily cash allowance paid for the number of days a member is 75% of the current daily compensation for every day or
unable to work due to sickness or injury equivalent to 90% x fraction thereof of disability or P70 whichever is higher.
(average daily salary credit)
Separation Benefits
Not available
Eligibility requirements
1. 60 years of age, or separation from service with at least 3
years but not over 15 years served
2. Below 60 years of age, but at least 15 years of service
rendered.
Benefits
1. For 60 years of age or separated from service with
3 to 15 years of service:
cash payment of 100% of ave. monthly compensation for
each year of service (so essentially, the total amount of all
contributions paid) or P12,000 whichever is higher.
2.
106
purposes of totalization.
What happens?
Workers shall be combine his years of creditable
service and paid contributions in one sector, private
or public, as represented by his contributions to
either SSS or GSIS, respectively, with his service in
the other sector.
Definition of terms
1. Portability
Shall refer to the transfer of funds for the
account and benefit of a worker who transfers
C.
from one system to the other367
2. Totalization
Shall refer to the process of adding up the Coverage: All citizens
periods of creditable services or contributions 1. Paying:
a. Both public and private sector employees;
under each of the Systems, for purposes of
368
and
eligibility and computation of benefits
b. The self-employed
2. Nonpaying:
Sec 3, RA 7699
a. Retirees and pensioners of either SSS or
A covered worker who transfers employment
GSIS;
from one sector to another or is employed in
b. Members who have reached retirement age
both sectors shall have his credible services or
and who at least have paid 120 monthly
contributions in both Systems credited to his
contributions;
service or contribution record in each of the
c. Indigent members; and
Systems and shall be totalized for purposes of
d. Legal dependents.
old-age, disability, survivorship and other
benefits in case the covered member does
Who are dependents?
not qualify for such benefits in either or
1. Legitimate spouse who is not a member,
both Systems without totalization.
(same as SSS);
Provided, however, That overlapping periods of
membership shall be credited only once for
367 Sec 2(b), RA 7699
107
1.
2.
3.
4.
5.
6.
INCLUDED
In-patient Hospital Care
Room and board
Services of health care professionals
Diagnostics, laboratory, and other medical
examination services
Use of surgical or medical equipment and
facilities
Prescription drugs and biological
Inpatient education packages
Out-patient Care
1. Services of health care professionals
2. Diagnostic, laboratory, and other medical
examination services
3. Personal preventive services; and
4. Prescription drugs and biologists
1.
2.
3.
4.
5.
6.
IX.
Labor Standards-Related
Special Laws
108
those
which
are
currently
Employers are required to pay all their
incurring substantial losses or
rank-and-file employees 13th month pay
in the case of non-profit institutions
and organizations, where their 13th month pay may be the subject of
income, whether from donations,
collective bargaining376
contributions, grants and other The benefits granted under this issuance shall
earnings from any source, has
not be credited as part of the regular
consistently declined by more
wage of the employees for purposes of
than forty (40%) percent of their
determining overtime and premium pay, fringe
normal income for the last two (2)
benefits, as well as premium contributions to the
years, subject to the provision of
State Insurance Fund, social security, medicare
Section 7 of this issuance;
and private welfare and retirement plans.377
b. The Government and any of its
political subdivisions, including
government-owned
and
controlled
corporations,
except
those
corporationsC. RA 7877: Anti-Sexual Harrasment
Act
operating essentially as private
subsidiaries of the Government;
c. Employers already paying their Work, education or training-related sexual
employees 13-month pay or more inharassment, defined
a calendar year of its equivalent at theSec 3. definition, RA 7877
time of this issuance;
Work, education or training-related sexual
d. Employers of household helpers harassment is committed by an employee,
and persons in the personal manager, supervisor, agent of the employer,
service of another in relation to suchteacher, instructor, professor, coach, trainor, or
workers; and
any other person who, having authority,
e. Employers of those who are paid on influence or moral ascendancy over
purely commission, boundary, or another in a work or training or
task basis, and those who are paid a education environment, demands, requests
fixed amount for performing a specific or otherwise requires any sexual favor from
work, irrespective of the time consumedthe other, regardless of whether the demand,
in the performance thereof, exceptrequest or requirement for submission is
where the workers are paid on piece-rate accepted by the object of said Act.
basis in which case the employer shall be
covered by this issuance insofar as such How work-related sexual harassment is
workers are concerned.
committed
Sec 3. Definition, RA 7877
Features of the benefit
d. In
a
work-related
or
employment
Employers shall pay to all their employees
environment,
sexual
harassment
is
receiving a basic salary of not more than
committed when:
P1,000 a month a thirteenth-month pay notVI.
The sexual favor is made as a
later than December 24 of every year.375
condition in the hiring or in the
employment,
re-employment
or
Memorandum Order no. 28, 1986 Aug 13
continued
employment
of
said
removed
limiting
coverage
to
individual, or in granting said individual
workers receiving not more than
favorable
compensation,
terms,
P1,000
conditions, promotions, or privileges; or
the refusal to grant the sexual favor
374 Sec 3, PD 851
109
VII.
VIII.
e.
of Public
Who are liable
1. The offender:
a. Employee
Forms of discrimination against the the
b. Manager, Supervisor, agent of thehandicapped in employment378
employer
1. Limiting, segregating or classifying a
c. Teacher, instructor, professor, coach,
disabled job applicant in such a manner that
trainer
adversely affects his work opportunities;
d. Any other person who, having authority, 2. Using
qualification
standards,
influence or moral ascendancy over
employment tests or other selection
another in a work or training or education
criteria that screen out or tend to screen
environment
out a disabled person unless such standards,
2. Any person who directs or induces another to
tests or other selection criteria are shown to be
commit any act of sexual harassment
job related for the position on question and are
3. Any person who cooperates in the commission
consistent with business necessity;
thereof by another without which it would not 3. Utilizing standards, criteria, or methods
have been committed
of administration that:
Role of the employer or Head of Office
The Employer or Head of Office shall have the duty:
110
a.
111
housing
law
provisions
prioritizing
applicants below the poverty line as declared
by the NEDA.384
6. Medical assistance
The DOH shall develop a comprehensive
health care program for solo parents and
their children. The program shall be
implemented by the DOH through their
retained hospitals and medical centers and
the local government units (LGUs) through
their provincial/ district/ city/ municipal
hospitals and rural health units (RHUs).385
112