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SUN TZU NOTES

LABOR LAW REVIEW My Notes


AL L. BERONQUE, CPA

minimum terms, benefits and conditions of employment which employees are legally entitled to and employers must comply with. )he minimum re2uirements prescribed by e&isting laws, rules and regulations and other issuances relating to wages, hours of wor!, cost of living allowances and other monetary and welfare benefits, including those set by occupational safety and health ha3ards. 4Section 7, ,ule ., ,ules on the 1isposition of *abor Standards +ases 5 September 1", 19677 8&. $vertime pay, night differential pay, premium pay, minimum wage

0oo! .9.: *A0$, ,8*A).$(S ,efers to the interactions between the employers and employees or their representatives and the mechanism by which the employment standards are negotiated, adjusted and enforced. Mar2ue3/ process the terms, benefits and conditions to improve the same through collective bargaining or negotiation. S$+.A* A(1 <8*=A,8 *8>.S*A).$(S *egislations that grant benefits which apply to wor!ers who are unable to wor! on account of sic!ness or disability or not at wor!. ,efers to a broader category of law that protects or promotes the welfare of society or segments of it in furtherance of social justice. .ntended to substitute income 8&. Social Security Act, ,etirement *aw, ?hil@ealth

LABOR STANDARDS I. THE APPLICABLE LAWS


PD 442 AS AMENDED A decree instituting a labor code, thereby revising and consolidating labor and social laws to afford protection to labor, promote employment and human resources development and ensure industrial peace based on social justice. Signed into law May 1, 197 and too! effect " months after in accordance with Article # because according to $ple, %the code was designed to be a dynamic and growing body of laws which will reflect continually the lessons of practical application and e&perience.' As it happened, the code was e&tensively amended even before it went into effect on (ovember 1,197 . )oo! effect on (ovember 1, 197 . Since then, the *abor +ode has undergone several amendments. )he most substantial amendment is ,A "71-. .t is the law governing *abor Standards and ,elations. Significance/ 0efore the effectivity of the labor code, there was no provision on the terms and conditions of employment.

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*A0$, S)A(1A,1S 5 employee is actually at wor! S$+.A* A(1 <8*=A,8 *8>.S*A).$( 5 employee is not at wor! or unable to wor!.

NEW TAX RELIEF LAW Most rece t soc!"# %e#&"re #e'!s#"t!o


FOUR S(STEMS OF LABOR 1. S*A:8,A4not recogni3ed in the phils7

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CONCEPT OF LABOR .n a general sense, a job, wor! or service. .n a particular sense, it is the e&ertion of human being by his mental or physical effort towards production of goods or services. )echnically, a wor!ing force or wor!ingmen.

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,efers to the e&traction of wor! or services from any person by means of enticement, violence, intimidation or threat, use of force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt bondage or deception. 41$ "-9B S#BB 7 not recogni3ed in the ?hils S8,=1$M4not recogni3ed in the phils7 8nforced labor of serfs on the fields of the landowners, in return for protection and the right to wor! on their leased fields. A little better off than slavery.

THREE FIELDS OF LABOR LAWS 1. *A0$, S)A(1A,1S Minimum terms and conditions fi&ed by law.

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;. A,).SA(S@.? $, .(18?8(18() +$(),A+)$,S@.? 4recogni3ed by *abor +ode7 )he same with modern independent contractorship wherein an independent contractor is engaged in a business separately distinct from the principal, the performed job, wor! or service, and wor!s according to his own means and methods, free from the control and direction of the principal e&cept as to the results thereof. A free person who offers his services to others subject to nobodyCs will . <A>8 SAS)8M 4recogni3ed by *abor +ode7 )he same with modern employer9employee system where there is an employee under the control and supervision of an employer as to the means, manner or method of which the wor! is to be accomplished including the result thereof and is paid for the wor! done in terms of wage. A person offers his services to another under an employment contract for which such service is paid by wages. BASES AND LIMITATIONS IN THE ENACTMENT OF LABOR LAWS BASES 1. ?$*.+8 ?$<8, .nherent power of the state to enact legislations that may interfere with personal liberty or property in order to promote the general welfare of the people 4>eneral <elfare +lause7 +onsists of imposition of restraint upon liberty or property and in order to foster the common good. >eneral welfare clause deemed written into the employment contract. ?ower to regulate personal liberty or property rights. *abor +ode contains several provisions that affect life and property.

8&ample/ Article 263 LC 4g7 <hen, in his opinion, there e&ists a labor dispute causing or li!ely to cause a stri!e or loc!out in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the +ommission for compulsory arbitrationG ,eason/ S$*8 may compel the employer to admit the employees and the employees to return to their wor!. #. S$+.A* FHS).+8 )he promotion of the welfare of all the people, the adoption by the government of measures calculated to insure economic stability of all the component elements of society through the maintenance of proper economic and social e2uilibrium in the interrelation of the members of the community, constitutionally through the adoption of measures legally justifiable, or e&tra9constitutionally through the e&ercise of powers, underlying the e&ercise of all governments on the time honored principle of %salus populi est suprema le&'. 41r. Fose ?. *aurel7 )he law is geared towards the concern of labor because our legislators reali3e that social and economic imbalance between the employer and employee. ?hilippines is a signatory of .*$ +onvention 4.nternational *abor $rgani3ation7 H( 1eclaration of @uman ,ights ?,$)8+).$( )$ *A0$,

OMNIBUS RULES "s ")e $e$ *+ DO NO. ,S.--/, DO NO. 4,0,1 S2,,1, "s ")e $e$ *+ DO NOS. 4,0A0,1, 4,0B0,1, 4,0C0,1 " $ 4,0C0 ,2 @ave the force and effect of laws. ?rovided, however, that these rules and issuances will not e&pand the law or strip the law. $therwise, under the rules on statutory construction, these will be considered void. )he 1$*8 is the lead agency in enforcing labor laws and it possesses rule9ma!ing power in the enforcement of the +ode. 0ut a rule or regulation that e&ceeds the departmentCs rule9ma!ing authority is void. )he rule9ma!ing power is e&ceeded when the implementing rule changes, wittingly or unwittingly, the content or meaning of the law which the rule aims to implement. )he implementing rule, on other words, must be subordinate to the law itself.

8DAM?*8/ ?olicy .nstruction (o. - 966 4issued by former Sec. =ran!lin 1rilon7 has been declared void by the Supreme +ourt because this has e&panded Art. 6; of the *abor +ode on 8mployment of @ealth ?ersonnel by erroneously interpreting that health employees are entitled to a %full wee!ly wage for 7 days' if they have completed the B9hourE-9day wor!wee!. SUPREME COURT DECISIONS Article 8 CC.9 Fudicial decisions applying or interpreting the laws or the +onstitution shall form part of the legal system of the ?hilippines.

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Article X ! Section 3! "#8$ Constitution . )he State shall afford full protection to labor, local and overseas, organi3ed and unorgani3ed, and promote full employment and e2uality of employment opportunities for all. ,eason/ 8mployer stands in a higher footing than the employee because of economic dependence of the employee on the employer and the greater supply of labor than the demand of it. LIMITATIONS

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rules and regulations shall become effective fifteen 41-7 days after announcement of their adoption in newspapers of general circulation. ?ublication is indispensable. ,ules and regulations are still valid even if no publication, however, it is unenforceable.

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($(9.M?A.,M8() +*AHS8 the

Article ! Section "%& (o law impairing obligation of contracts shall be passed.

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+ongress could not pass laws which would impair the obligations of the parties, however, the same can pass laws to regulate the obligations and contracts. May be impaired by the e&ercise of the state of police power. 8IHA* ?,$)8+).$( +*AHS8

2. ART. 2 NCC. *aws shall ta!e effect after fifteen days following the completion of their publication either in the +fficial ,a-ette, or in a newspaper of general circulation in the ?hilippines, unless it is otherwise provided. 4As amended by 8$ #BB7. 1. E.O. 2-2 A$)! !str"t!5e Co$e o& t6e P6!#!77! es Sec& "8& .hen La/s (a0e Effect& 1 *aws shall ta!e effect after fifteen 41-7 days following the completion of their publication in the $fficial >a3ette or in a newspaper of general circulation, unless it is otherwise provided. Sec& "#& 2rospectivity& 1 *aws shall have prospective effect unless the contrary is e&pressly provided. Sec& 2%& nterpretation of La/s and Administrative ssuances& 1 .n the interpretation of a law or administrative issuance promulgated in all the official languages, the 8nglish te&t shall control, unless otherwise specifically provided. .n case of ambiguity, omission or mista!e, the other te&ts may be consulted. Sec& 2"& 3o mplied 'evival of 'epealed La/&1 <hen a law which e&pressly repeals a prior law itself repealed, the law first repealed shall not be thereby revived unless e&pressly so provided. Sec& 22& 'evival of La/ mpliedly 'epealed& 1 <hen a law which impliedly repeals a prior law is itself repealed, the prior law shall thereby be revived, unless the repealing law provides otherwise. Sec& 23& 4norance of the La/& 1 .gnorance of the law e&cuses no one from compliance therewith. <ill not apply unless the people are informed through the re2uired publication

Article ! Section "& (o person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the e2ual protection of the laws. ;. .ndividuals similarly situated must be treated e2ually under the; law. 82uality among e2uals ?,$@.0.).$( S8,:.)H18 A>A.(S) .(:$*H()A,A

A'( CLE ! Section "8)2*& (o involuntary servitude in any form shall e&ist e&cept as a punishment for a crime whereof the party shall have been duly convicted. . 1H8 ?,$+8SS +*AHS8

T(PES OF LABOR LAW LE3ISLATION 1. #. ;. . ?,$)8+).:8 <8*=A,8 $, S$+.A* 1.?*$MA).+ A1M.(.S),A).:8

SOURCES OF LABOR LAWS ?,.MA,A +onstitution Statutes 4?1 #, (++, ,?+7 Fudicial decisions

RULE ON THE IMPLEMENTATION AND INTERPRETAION OF LABOR LAWS 1. ART. 4. Construction in favor of labor. - All doubts in the implementation and interpretation of the provisions of this +ode, including its implementing rules and regulations, shall be resolved in favor of labor. ,easons/ 8mployer stands in a higher footing than the employees and the State affirms labor as the primary social economic force. )he policy is to apply the code to a greater number of employees to enable them to avail of the benefits under the law, in line with the StateCs desire to give ma&imum aid and protection to labor. .t is not always correct to thin! that the aim of the law is always to favor labor. )he mandate under Art is simply to resolve doubt, if any, in favor of labor. .f there is no

AHD.*.A,A 1ecision of foreign courts )e&tboo!sEreviewers in labor law $pinions of 1$*8 .,, issued by 1$*8

EFFECTI4IT( OF LABOR LAWS, RULES AND RE3ULATIONS 1. ART. 5. Rules and regulations. - )he 1epartment of *abor and other government agencies charged with the administration and enforcement of this +ode or any of its parts shall promulgate the necessary implementing rules and regulations. Such

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doubt in implementing and interpreting the law, labor will enjoy no built9in advantage and the law will have to be applied as it is. )he law in protecting the rights of the laborer, authori3es neither oppression nor self destruction of the employer. +ourt decisions adopt a liberal approach that favors the e&ercise of labor rights. time, call a national, regional, or industrial tripartite conference of representatives of government, wor!ers and employers for the consideration and adoption of voluntary codes of principles designed to promote industrial peace based on social justice or to align labor movement relations with established priorities in economic and social development. .n calling such conference, the Secretary of *abor and 8mployment may consult with accredited representatives of wor!ers and employers. )As amended by Section 32! 'epublic Act 3o& 6$"5! 6arch 2"! "#8#*& ,eason/ ,elations between capital and labor are not merely contractual. )hey are so impressed with public interest that representations from employer and employee in decision and policy9ma!ing bodies of the government are necessary. )his is also in affirmation of the role of the State as the guardian of the peopleCs rights and the constitutional provision on protection to labor. 8&. +reation of ,)<0 which is composed of government, employer and employee representatives. +omposition of (*,+, chairman is government appointed, remaining # commissioners from employer and employee sectors.

RELATIONS BETWEEN CAPITAL AND LABOR 2. Art. 1700. )he relations between capital and labor are not merely contractual. )hey are so impressed with public interest that labor contracts must yield to the common good. )herefore, such contracts are subject to the special laws on labor unions, collective bargaining, stri!es and loc!outs, closed shop, wages, wor!ing conditions, hours of labor and similar subjects. *abor disputes also affect the state and the public at large if employees are engaged in stri!e or other concerted activities.

?A,).8S )$ 8M?*$AM8() +$(),A+) 1. #. ;. . 8mployer 8mployee ?ublic State

II. BASIC PRINCIPLES


CONSTITUTIONAL AND STATUTOR( RI3HTS OF WOR:ERS IN 3ENERAL ART XIII, Sect!o 1, 7"r .

PRINCIPLE OF NON0OPPRESSION 3. Art. 1701. (either capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public. (ot to re2uire employee to wor! against his will nor to compel the employer to hire the employee against the formerCs will.

%)he state shall afford full protection to labor, local and overseas, organi3ed and unorgani3ed, and promote full employment and e2uality of employment opportunities for all.' SPECIFIC RI3HTS OF WOR:ERS IN RELATION TO LABOR STANDARDS ; LABOR RELATIONS .( ,8*A).$( )$ *A0$, S)A(1A,1S 1. #. ;. @umane conditions of wor!.4 A,) D..., Sec ; par #7 *iving wage.4 A,) D..., Sec ; par #7 Fust share in the fruits of production. .4 A,) D..., Sec ; par 7

4. Art. 1702. .n case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer. LABOR AND 8CHATTEL9 %labor is not a chattel nor a commodity, but human, and must be dealt with from the standpoint of human interest.'4asufrim vs. smc7

.( ,8*A).$( )$ *A0$, ,8*A).$(S 4A,) D..., Sec ; par #7 1. #. ;. . -. Self9organi3ation +ollective bargaining and negotiations ?eaceful concerted activities including the right to stri!e in accordance with law. Security of tenure ?articipate in policy and decision ma!ing processes affecting their rights and benefits as maybe provided by law.

TRIPARTISM IN DECISION AND POLIC( MA:IN3 BODIES OF THE 3O4ERNMENT ART. 275. Tri artis! and tri artite conferences. - 4a7 )ripartism in labor relations is hereby declared a State policy. )owards this end, wor!ers and employers shall, as far as practicable, be represented in decision and policy9ma!ing bodies of the government. 4b7 )he Secretary of *abor and 8mployment or his duly authori3ed representatives may, from time to

ASPECTS OF LABOR STANDARDS PURPOSE AND SOURCE *A0$, S)A(1A,1S

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)he minimum re2uirements prescribed by e&isting laws, rules and regulations and other issuances relating to wages, hours of wor!, cost of living allowances and other monetary and welfare benefits, including those set by occupational safety and health ha3ards. 4Section 7, ,ule ., ,ules on the 1isposition of *abor Standards +ases 5 September 1", 19677

+ustomary mode of employerCs conduct, usually nonverbal fi&ing employment benefits over a period of time through repetitive employer behavior. 8&. :acation with pay, birthday leave . Administrative $rder of 1$*8 Also prescribes the terms and conditions of employment. 8&. +ompressed wor!wee! +ompulsory or :oluntary Arbitration the award given to the party, it is another source of a *abor Standard

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AS?8+)S $= *A0$, S)A(1A,1S 1. M8*.$,A).:8 *A0$, S)A(1A,1S .ntended to e&pand the flow of income or benefits to wor!ingman that are re2uired for a decent living. 8&. $vertime pay, premium pay, nightshift differential pay ?,$)8+).:8 *A0$, S)A(1A,1S .ntended to protect harsh and oppressive conditions of wor! that inimical to health, safety and well9being of the wor!ers. 8&. ?rescribed hours of wor!

". +ollective 0argaining Agreement or +0A can also be a source of *S because it provides terms and conditions of employment prescribed by law. 7. Statutes

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,8AS$(/ ?rinciple of (on9diminution of benefits. CONSCEPT OF EMPLO(ER < EMPLO(EE= NATURAL AND >URIDICAL PERSON IN LABOR STANDARDS Art -/*. %8mployer' includes any person directly or indirectly in the interest of an employer in relation to an employee and shall include the >overnment and all its branches, subdivision and instrumentalities, all government9 owned or controlled corporations and institutions, as well as non9profit private institutions, or organi3ations.4e&panded definition7 Art -/c. %8mployee' includes any individual employed by an employer. IN LABOR RELATIONS Art 2.2e. %8mployer' includes any person acting in the interest of an employer, directly or indirectly. )he term shall not include any labor organi3ation or any of its officers or agents e&cept when acting as employer. Art 2.2&. %8mployee' includes any person in the employ of the employer. )he term shall not be limited to the employees of a particular employer, unless this code so e&pressly states. .t shall include any individual whose wor! has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially e2uivalent and regular employment. 4e&panded definition7 COMMENTS? 8M?*$A8, may be 3A(7'AL +' 87' 9 CAL, a single proprietorship, a partnership or a corporation.

+$(S8IH8(+8S $= M8*.$,A).:8 A(1 ?,$)8+).:8 *A0$, S)A(1A,1S A. Social 8njoying a better living conditions, humane conditions, high salary, greater 2uality of life 0. ?olitical ,elationship of people and government would be better because people are enjoying healthy living conditions. +. 8conomic More money, more demands because there will be an increase in basic production of commodities. ?H,?$S8 $= *A0$, S)A(1A,1S ,emedial and @umanitarian S$H,+8S $= *A0$, S)A(1A,1S 1. 8mployment +ontract

,eason/ *S are terms and conditions fi&ed by law and the contract is the law between the parties. 8&. 8mployer hires an employee and gives a high salary in effect the former provides the latter a labor standard plus car, allowances and other benefits. #. +ompany ?olicies 1eclarations or statements in written form fi&ing employment benefits usually found in company manual. 8&. ,esignation benefit, retirement benefit other than the one mandated by law. +ompany ?ractice

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)he >overnment is an employer within the meaning of the *abor +ode in *abor Standards.

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So, a government agency with an original charter contracts with a security agency to supply security guards, and this security agency is unable to pay the wages of its guards. Q? .s principal government agency considered jointly and severally liable with the security agencyJ <ill Article 1B"91B9, *+ apply to themJ +an the guards file with the labor complaint with the nearest arbitration branch of the (*,+ and sue both the security and government agencyJ A? A8S, the *abor +ode will govern. )he government agency cannot move for the dismissal of the complaint for lac! of jurisdiction on the part of the *abor Arbiter and say that they are governed by the +ivil Service *aw ,ules and ,egulations. )he government agency contracted the services of an independent contractor, so they are considered principals. )herefore the *+ will govern regarding the monetary claims of the security guards. A motion to dismiss filed by the government agency in the above9cited e&ample will not prosper on the ground that the *abor Arbiter has no jurisdiction, because the term %8mployer' includes government agencies. t does not ma0e any :ualifications /hether it is one /ith or /ithout ori4inal charter& 8M?*$A88 An employee is always a 3A(7'AL 2E'S+3 Kmay include =ilipino citi3ens or foreignersL Sari9sari Store 4single

IH8S).$( $= *A<M IH8S).$( $= =A+) %)he e&istence or absence of employer9employee relationship is A IH8S).$( $= *A< A(1 A IH8S).$( $= =A+)S, each in its defined sense. )he character of relationship between the parties is not what they call it in their contract but what the law calls it after e&amination of the facts. )he characteri3ation by law prevails that in the contract. .n this case the e&istence of employer9 employee relationship is not a matter of stipulationM it is a IH8S).$( $= *A<. 0ut the conclusion an employer9employee relationship e&ists depends upon the facts of each case. .n one case an employer9employee relationship may be found to be present, but in another case with different facts, it may be absent. .n this sense, the e&istence of an employer9employee relationship is a IH8S).$( $= =A+).' )*ili++ine ,-.i /ero0 Cor+ vs. NLRC R %%%1"%$ "1&"1&(# +$,8 $, ($(9+$,8 F$0S %1epending on the applicability of the tests of employment, an employer9employee relationship may e&ist regardless of the nature of the activities involved. .n other words, the !ind of wor! is not the definitive test of whether the wor!er is an employee or not' Sevilla vs. CA R 22%!'34$ "2&%1&!! ).)*8 AS <8AN .(1.+A)$,S %)he fact that one had been designated %branch manager' does not ma!e such person an employee. )itles are wea! indicators' En5y5lo+e6ia Britani5a vs. NLRC R !7"(!$ %%&"2&(# %<here a person who wor!s for another does so more or less at his own pleasure and is not subject to definite hours or conditions of wor! and in turn is compensated according to the result of his efforts and not the amount thereof, we should not find that the relationship of employer9employee e&ists.' Dy 8e* Beng vs. ILM9) R %""##1$ "'&%4&(1 M8,8 8D.S)8(+8, ($) A+)HA* 8D8,+.S8 %0ut it should be borne in mind that the control test calls M8,8*A =$, )@8 8D.S)8(+8 of the right to control the manner of doing the wor!, ($) )@8 A+)HA* 8D8,+.S8 of the right.' Ins-lar Ass-ran5e Co. vs. NLRC R %%((4"$ "4&%'&(! %8&clusivity of service to the company, control of assignments and removal of agents, collection of premiums, furnishing of

8&ample/ 1umon proprietorship7.

<ho is considered the employerJ <ilbert 1umon will be the employer, because the sari9sari store does not have a separate juridical personality. So, if 1umon is made a defendant in a labor case, the caption will be 9 %8mployee vs. <ilbert 1umon, doing business under the name and style of 1umon Sari9 sari Store.' EMPLO(ER0EMPLO(EE RELATIONSHIP it is in personam, involves the rendition of personal service by the employee, and parta!es of master and servant relationship.

FOUR0FOLD TEST 1. )he selection and engagement of the employee. #. )he payment of wages or salaries for services. ;. )he power of dismissal or to impose disciplinary actions. . )he employerCs power to control the employee with respect to the means and methods by which the wor! is to be accomplished. )his is also !nown as the %C+3('+L (ES(;& Tabas vs. California Mfg Co. R !"#!"$ "%&'#&!(

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facilities and materials as well as capital described as unit development fund are @A**MA,NS $= A MA(A>8M8() SAS)8M where there can be no escaping the conclusion that one is an employee of the insurance company.' Invest:ent )lanning Cor+ v. SSS ; %%&%!&#7< +$(),$* )8S) 4most important element7 %)hat is, whether the employer controls or has reserved the right to control the employee not only as to the result of the wor! to be done but also as to the means and methods by which the same is to be accomplished' Do:asig vs. NLRC R %%!%"% "(&%#&(# 8:.18(+8 $= 8M?*$AM8()M .1, :$H+@8,S, SSS ,8>.S),A).$(, M8M$,A(1HM %Substantial evidence is sufficient as a basis for judgment on the e&istence of employer9employee relationship. (o particular form of evidence is re2uired to prove the e&istence of such relationship.' ,lores vs. N-estra R ##!(" "2&%1&!! %)hat the respondent registered the petitioners with SSS is proof that the latter is the formerCs employees. )he coverage of SSS *aw is predicated on the e&istence of an employer9employee relationship' %.n a business establishment, an identification card is usually provided not only as a security measure but mainly to identify the holder thereof as a bona fide of the firm that issues it. )ogether with the cash vouchers covering the petitionerCs salaries for the months stated therein, these matters constitute substantial evidence ade2uate to support a conclusion that the petitioner was indeed the employee of the respondent.' )*ili++ine ,9=I /ERO/ COR) vs. NLRC R%%%1"% "4&"1&(# %Appointment letters or employment contracts, payrolls, organi3ation charts, personnel lists, as well as testimony of co9employees, may also serve as evidence of employee status.' O+-len5ia I5e )lant vs. NLRC R (!4#! %'&%1(4 A0S8(+8 $= (AM8 .( )@8 ?AA,$**M )8S).M$(.A* 8:.18(+8 %.f only documentary evidence would be re2uired to show that relationship, no scheming employer would ever be brought before the bar of justice, as no employer would wish to come out with any trace of the illegality he as authored considering that it should ta!e much weightier proof to invalidate a written instrument. )hus, as in this case where the employer9 employee relationship between petitioners and 8sita was sufficiently proved by testimonial evidence, the absence of time sheet, time record or payroll has become inconse2uential.' Labor Congress of t*e )*ili++ines vs. NLRC R %'4(4! "1&'%&(! M$18 $= +$M?8(SA).$( ($) A )8S) $= 8M?*$AM8() S)A)HS. %)he presence or absence of employer9employee relationship is not determined by the basis of the employeeCs compensation. .ndeed, employment relationship is one thing, pay determination is another. )he e&istence of employment relationship depends on whether the four9fold test is present or not.' >a:-6io vs. NLRC R 7#7'4 "4&'1&(" $( %2A< A+' 0AS.S %)he nature of their employment i.e % pa0iao; basis, does not ma!e petitioners independent contractors. ?a!iao wor!ers are considered employees as long as the employer e&ercises control over the means by which such wor!ers are to perform their wor!. +onsidering that the petitioners did their wor! inside private respondentCs farm, the latter necessarily e&ercised control over the wor! performed by petitioners. )he seasonal nature of petitionerCs wor! does not detract from the conclusion that employer9employee relationship e&ists. Seasonal wor!ers whose wor! is not merely for the duration of the season, but who are rehired every wor!ing season are considered regular employees.' Q? <hy is it important to determine whether the relationship between the parties is that of employer and employee or that of principal and independent contractor or of principal9agentJ A? )o determine what laws will govern the rights and liabilities of the parties, and what tribunal will have jurisdiction over their disputes. Re#"t!o s6!7 8mployer9 8mployee ?rincipal9 .ndependent +ontractor ?rincipal9 Agent 3o5er ! ' L"%s *abor laws obligations and +ontracts K++L +ivil +ode Tr!*@ "# *abor tribunal ,egular courts

,egular courts

ECONOMIC REALIT( TEST ,ran5is5o v. NLRC .R. No. %7""!7? A-g-st 4%$ '""# )<$9).8,81 A??,$A+@

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 7 of 75

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%)he better approach would be to adopt a )<$9 ).8,81 )8S) involving 417 the putative employerCs power to control the employee with respect to the means and methods by which the wor! is to be accomplished and 4#7 the underlying economic realities of the activity or relationship. )his two9tiered test would provide us with a framewor! of analysis, which would ta!e into consideration the totality of circumstances surrounding the true relationship between the parties. )his is especially A??,$?,.A)8 in this case where there is no written agreement or terms of reference to base the relationship onM and due to the comple&ities of the relationship based on the various positions and responsibilities given to the wor!er over the period of the latterCs employment. )he determination of the relationship between employer and employee depends upon the circumstances of the whole economic activity. )he ?,$?8, S)A(1A,1 $= 8+$($M.+ 18?8(18(+8 is whether the wor!er is dependent on the alle4ed employer for his continued employment in that line of business& Hnder the broader EC+3+6 C 'EAL (= (ES(, the petitioner can li!ewise be said to be an employee of respondent corporation because she had served the company for si& years before her dismissal, receiving chec! vouchers indicating her salariesE benefits, 1;th month pay, bonuses and allowances as well as deductions and SSS contributions. .t is therefore apparent that petitioner is economically dependent on respondent for her continued employment in the latterCs line of business. % Q? @ow to determine that a person is economically dependentJ A? 1. (umber of years in the company #. ,eported to SSS, good indicator of treating him as an employee. ;. ,egistered in the payroll . .dentification card -. +ompany uniform PRINCIPAL0A3ENT RELATIONSHIP Art .ABA NCC? 0y the contract of agency, a person binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of the latter. .t is the principal who selects the agent An agent is compensated under the contract of agency for services rendered. An agent is disciplined by the principal because former is under the authority of the latter. )he principal controls the means and methods of the wor! of an agent. K,elate above to the four9fold testL

)here is only one party in a principal9agent relationship, the agent is merely an e&tension of the principal. )hey are regarded as one. So if there is a contractor relationship, it is not between ; parties but is between the principal or the agent as an e&tension of the principal and the other party.

Note? )o ma!e a distinction between a principal9agent relationship and that of an employer9employee relationship, the four9fold test will not be used because the 17 agent is selected by the principal #7 compensated by the principal ;7 and most oftentimes, the principal also substitutes his own judgment for that of the agent. PRINCIPAL0CONTRACTOR CFREE ARTISAND RELATIONSHIP principal selects the contractor contractor is compensated for services rendered. )he contractor is ot under the discipline of the principal. the contractor is ot under the control of the principal. )he definition says that aside from engaging in a business separately distinct from the principal, to perform job, wor! or service, according to his own means and methods, free from control and direction of the principal e&cept as to the results thereof. Krelate above with four9fold testL this relationship e&ists also in situations under art 1B"9 1B9 *+. Article 171;, +ivil +ode/ 0y contract for a piece of wor! the contractor binds himself to e&ecute a piece of wor! for the employer, in consideration of a certain price or compensation. )he contractor may either employ only his labor or s!ill, or also furnish the material.

CHIEF CHARACTERISTICS OF EMPLO(EE 1. 8conomic 1ependence on the person hiring the services. 8mployee cannot bargain the terms and conditions of employment. Medical doctors, lawyers, dentists, engineers in the e&ercise of their profession offer special services, the person engaging their services cannot e&ercise control over the means and methods of accomplishing the wor! e&cept the results thereof. )hey are considered as independent contractors not needing protection from the *abor +ode. 1. Subordination in his wor! relationship 8mployer e&ercises control not only the means and methods but also the results thereof.

III. RIGHT TO HIRE


NATURE? RI3HT OR PRERO3ATI4EE Strictly spea!ing, the employer has no right to hire a person as his employee. )he matter of selecting a person as oneCs employee is more appropriately described as a

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prerogative. .t is not a right in which you can go to court and enforce the right to hire a person, otherwise it will violate the constitutional provision against involuntary servitude, if one is compelled to be anotherCs employee. (o person can be compelled against his will to do an act whether legal or illegal. )hus, an employer cannot go to court and get an injunction to compel a person to become his employee. .f at all, the employee can only e&ercise the prerogative to invite that person and to hire him if he so desires. .n that sense, the right to hire is essentially a )" "'e)e t 7rero'"t!5e. MA(A>8M8() ?,8,$>A).:8 SMC v. O+le %8&cept as limited by Special *aws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, wor! assignments, wor!ing methods, time, place and manner or wor!, tools to be used, processes to be followed, supervision of wor!ers, wor!ing regulations, transfer of employees, wor! supervision, layoff of wor!ers and the discipline, dismissal and recall of wor!ers.'4$(8 ,.>@) $= A( 8M?*$A8,7 *.M.)A).$(S $( MA(A>8M8() ?,8,$>A).:8 1. law #. contract or +0A ;. principles of fair play and justice 4a3ucena7 ,.>@)S $= MA(A>8M8() 1. #. ;. . ,ight to ,$. ,ight to prescribe rules ,ight to select employees )ransfer or discharge of employees discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. Applies to women in ordinary and special occupations .t encourage illicit relationship.

)T@T V. NLRC '7' s5ra 1(# %.t assaults good morals and public policy, tending to deprive a woman of freedom to choose her status, a privilege that by all accounts inheres in the individual as an intangible and inalienable right % ?A* 2. A e)7#o+er !s 7ro6!*!te$ &ro) e)7#o+! ' " + 7erso *e#o% .A +e"rs o#$ ! " @ $ert"H! ' %6!c6 !s 6"I"r$o@s or $e#eter!o@s ! "t@re.

ART. .1-. #ini!u! e! lo$able age& 9 4a7 (o child below fifteen 41-7 years of age shall be employed, e&cept when he wor!s directly under the sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling.4amended by 'A $6"%! /hich /as also amnded by 'A $658 and 'A #23"! implemented by 9+ 651 %>* 4b7 Any person between fifteen 41-7 and eighteen 4167 years of age may be employed for such number of hours and such periods of the day as determined by the Secretary of *abor and 8mployment in appropriate regulations. 4c7 )he foregoing provisions shall in no case allow the employment of a person below eighteen 4167 years of age in an underta!ing which is ha3ardous or deleterious in nature as determined by the Secretary of *abor and 8mployment. DO NO. ,40-@AOA,1$HS <$,N A(1 A+).:.).8S =$, ?8,S$(S 08*$< 16 A8A,S $*1 1. <or! which e&poses children to physical, psychological or se&ual abuse. lewd shows cabarets bars 4!tv, !arao!e bars7 dance halls bath houses and massage clinics escort service gambling halls and places

EXERCISE OF RI3HT OR PRERO3ATI4E ABSOLUTEE (o, it is a mere prerogative subject to limitations provided by e2uitable principles of law

LE3AL LIMITATIONSFPROHIBITIONS PRIOR TO HIRIN3 A. UNDER THE LABOR CODE .. A e)7#o+er !s 7ro6!*!te$ &ro) reG@!r! ' "s " co $!t!o o& e)7#o+)e t t6"t " %o)" e)7#o+ee s6"## ot 'et )"rr!e$. Art .1B. "ti ulation against !arriage& 9 .t shall be unlawful for an employer to re2uire as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate e&pressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss,

#. <or! underground, underwater, at dangerous heights or at unguarded heights # meters and above, or in confined places. Mining 1eep sea fishingEdiving .nstalling and repairing of telephone, telegraph and electrical linesM cable fitters ?ainting buildings <indow cleaning =ruit pic!ing involving climbing

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SUN TZU NOTES


;. <or! with dangerous machinery, e2uipment and tools, or which involves manual handling or transport heavy loads. *ogging +onstruction Iuarrying $perating agricultural machinery in mechani3ed farming Metal wor! and welding 1riving or operating heavy e2uipment such as payloaders, bac!hoes, bulldo3ers, cranes, pile driving e2uipment, trailers, road rollers, tractor lifting appliances, scaffold winches, hoists, e&cavators and loading machines. $perating or setting motor9driven machines such as saws, presses and wood9wor!ing machines $perating power driven tools such as drills and jac! hammers Stevedoring <or!ing in airport hangars <or!ing in warehouses <or!ing in doc!s . <or! in an unhealthy environment which may e&pose children to ha3ardous processes, to temperatures, noise levels or vibrations damaging to their health, to to&ic, corrosive, poisonous, no&ious, e&plosive, flammable and combustible substances or composite, to harmful biological agents, or to other dangerous chemicals including pharmaceuticals. Manufacturing of handling pyrotechnics )anning ?esticide spraying 0lac!smithing, hammersmiths, forging 8&tracting land and oil )itling and greasing of heavy machinery =iber and plastic preparing >arbage collecting <or!ing in abattoirs <or!ing in hospitals or other healthcare facilities Assisting in laboratories and &9ray wor! <or!ing in video arcades <or!ing in discothe2ues <elding %#7 <here a childCs employment or participation in public entertainment or information through cinema, theater, radio, television or other forms of media is essential/ ?rovided, )hat the employment contract is concluded by the childCs parents or legal guardian, with the e&press agreement of the child concerned, if possible, and the approval of the 1epartment of *abor and 8mployment/ ?rovided, further, )hat the following re2uirements in all instances are strictly complied with/ %4a7 )he employer shall ensure the protection, health, safety, morals and normal development of the childM %4b7 )he employer shall institute measures to prevent the childCs e&ploitation or discrimination ta!ing into account the system and level of remuneration, and the duration and arrangement of wor!ing timeM and %P )he employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and s!ills ac2uisition of the child. %.n the above e&ceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a wor! permit from the 1epartment of *abor and 8mployment which shall ensure observance of the above re2uirements. @ours of <or! of a <or!ing +hild. 5 %417 A child below fifteen 41-7 years of age may be allowed to wor! for not more than twenty 4#B7 hours a wee!/ ?rovided, )hat the wor! shall not be more than four 4 7 hours at any given dayM %4#7 A child fifteen 41-7 years of age but below eighteen 4167 shall not be allowed to wor! for more than eight 467 hours a day, and in no case beyond forty 4 B7 hours a wee!M %4;7 (o child below fifteen 41-7 years of age shall be allowed to wor! between eight oCcloc! in the evening and si& oCcloc! in the morning of the following day and no child fifteen 41-7 years of age but below eighteen 4167 shall be allowed to wor! between ten oCcloc! in the evening and si& oCcloc! in the morning of the following day.9 CRA /B., "s ")e $e$, ")e $! ' "rt .1- LCD 4. A e)7#o+er !s 7ro6!*!te$ &ro) e)7#o+! ' c6!#$re "s " )o$e# ! " + "$5ert!se)e t $!rect#+ or ! $!rect#+ 7ro)ot! ' "#co6o#!c *e5er"'es, ! toJ!c"t! ' $r! Hs, to*"cco " $ !ts *+7ro$@cts, '")*#! ' or " + &or) o& 5!o#e ce or 7or o'r"76+.

-. <or! under particularly difficult conditions such as wor! for long hours or during the night, or wor! where the child is unreasonably confined to the premises of the employer. 1. A e)7#o+er !s 7ro6!*!te$ &ro) e)7#o+! ' c6!#$re *e#o% .2 +e"rs o#$, eJce7t?

%17 <hen a child wor!s directly under the sole responsibility of hisEher parents or legal guardian and where only members of hisEher family are employed/ ?rovided, however, )hat hisEher employment neither endangers hisEher life, safety, health, and morals, nor impairs hisEher normal development/ ?rovided, further, )hat the parent or legal guardian shall provide the said child with the prescribed primary andEor secondary educationM or

RA 7#%" as a:en6e6 S+e5ial )rote5tion Against C*il6 Ab-se$ E0+loitation an6 Dis5ri:ination A5t A a:en6e6 Art %4( LCB Sec& ">& 2rohibition on the Employment of Children in Certain Advertisements. 5 (o child shall be employed as a model in any advertisement directly or indirectly promoting alcoholic

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SUN TZU NOTES


beverages, into&icating drin!s, tobacco and its byproducts, gambling or any form of violence or pornography. 2. A e)7#o+er !s 7ro6!*!te$ &ro) reG@!r! ' "s " co $!t!o o& e)7#o+)e t t6"t " 7erso or " e)7#o+ee s6"## ot Ko! " #"*or or'" !I"t!o or s6"## %!t6$r"% &ro) o e to %6!c6 6e *e#o 's. C(ELLOW DO3 CONTRACTD .n the above e&ceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a wor! permit from the 1epartment of *abor and 8mployment which shall ensure observance of the above re2uirement. )he 1epartment of *abor and 8mployment shall promulgate rules and regulations necessary for the effective implementation of this Section. Sec. .4. &ro'ibition on t'e (! lo$!ent of C'ildren in Certain Advertise!ents. 5 (o person shall employ child models in all commercials or advertisements promoting alcoholic beverages, into&icating drin!s, tobacco and its byproducts and violence. RE)9BLIC ACT NO. 7#1! An act prohibiting the employment of children below 1- years of age in public and private underta!ings, ")e $! ' &or t6!s 7@r7ose sect!o .2, "rt!c#e 5!!! o& r. a. 7610. Section 1. Section 1#, Article :... of ,. A. (o. 7"1B otherwise !nown as the %Special ?rotection of +hildren Against +hild Abuse, 8&ploitation and 1iscrimination Act' is hereby amended to read as follows/ 8Sec. .2. E)7#o+)e t o& C6!#$re . R +hildren below fifteen 41-7 years of age shall not be employed e&cept/ 417 <hen a child wor!s directly under the sole responsibility of his parents or legal guardian and where only members of the employerCs family are employed/ 2rovided! ho/ever! )hat his employment neither endangers his life, safety, health and morals, nor impairs his normal developmentM 2rovided! further! )hat the parent or legal guardian shall provide the said minor child with the prescribed primary andEor secondary educationM or 4#7 <here a childCs employment or participation in public entertainment or information through cinema, theater, radio or television is essential/ 2rovided! )he employment contract is concluded by the childCs parents or legal guardian, with the e&press agreement of the child concerned, if possible, and the approval of the 1epartment of *abor and 8mployment/ and 2rovided, )hat the following re2uirements in all instances are strictly complied with/ 4a7 )he employer shall ensure the protection, health, safety, morals and normal development of the childM 4b7 )he employer shall institute measures to prevent the childCs e&ploitation or discrimination ta!ing into account the system and level of remuneration, and the duration and arrangement of wor!ing timeM and P )he employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and s!ills ac2uisition of the child. .n the above e&ceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a wor! permit from the 1epartment of *abor and 8mployment which shall ensure observance of the above re2uirements.

ART. 24A. %nfair labor ractices of e! lo$ers & 9 .t shall be unlawful for an employer to commit any of the following unfair labor practice/ 4b7 )o re2uire as a condition of employment that a person or an employee shall not join a labor organi3ation or shall withdraw from one to which he belongs. FULL TEXT OF THE SPECIAL LAWS AMENDIN3 ART .1- LC INCLUDIN3 D, B20,4 RE)9BLIC ACT NO. 7#%" S+e5ial )rote5tion Against C*il6 Ab-se$ E0+loitation an6 Dis5ri:ination A5t Sec. 1#. Employment of Children& 5 +hildren below fifteen 41-7 years of age may be employed e&cept/ 417 <hen a child wor!s directly under the sole responsibility of his parents or legal guardian and where only members of the employerCs family are employed/ 2rovided! ho/ever! )hat his employment neither endangers his life, safety and health and morals, nor impairs his normal development/ 2rovided! further! )hat the parent or legal guardian shall provide the said minor child with the prescribed primary andEor secondary educationM or 4#7 <hen a childCs employment or participation in public Q entertainment or information through cinema, theater, radio or television is essential/ 2rovided, )he employment contract concluded by the childCs parent or guardian, with the e&press agreement of the child concerned, if possible, and the approval of the 1epartment of *abor and 8mployment/ 2rovided! )hat the following re2uirements in all instances are strictly complied with/ 4a7 )he employer shall ensure the protection, health, safety and morals of the childM 4b7 the employer shall institute measures to prevent the childCs e&ploitation or discrimination ta!ing into account the system and level of remuneration, and the duration and arrangement of wor!ing timeM and P )he employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and s!ill ac2uisition of the child.

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)he 1epartment of *abor and 8mployment shall promulgate rules and regulations necessary for the effective implementation of this Section.' RE)9BLIC ACT NO. ('4% An act providing for the elimination of the worst forms of child labor and affording stronger protection for the wor!ing child, ")e $! ' &or t6!s 7@r7ose republic act no. 7"1B, as amended, otherwise !nown as the %special protection of children against child abuse, e&ploitation and discrimination act' Section 1. Section # of ,epublic Act (o. 7"1B, as amended, otherwise !nown as the %Special ?rotection of +hildren Against +hild Abuse, 8&ploitation and 1iscrimination Act', is hereby amended to read as follows/ Sec. #. Section 1# of the same Act, as amended, is hereby further amended to read as follows/ %Sec. 2. E)7#o+)e t o& C6!#$re 5 +hildren below fifteen 41-7 years of age shall not be employed e&cept/ %17 <hen a child wor!s directly under the sole responsibility of hisEher parents or legal guardian and where only members of hisEher family are employed/ ?rovided, however, )hat hisEher employment neither endangers hisEher life, safety, health, and morals, nor impairs hisEher normal development/ ?rovided, further, )hat the parent or legal guardian shall provide the said child with the prescribed primary andEor secondary educationM or %#7 <here a childCs employment or participation in public entertainment or information through cinema, theater, radio, television or other forms of media is essential/ ?rovided, )hat the employment contract is concluded by the childCs parents or legal guardian, with the e&press agreement of the child concerned, if possible, and the approval of the 1epartment of *abor and 8mployment/ ?rovided, further, )hat the following re2uirements in all instances are strictly complied with/ %4a7 )he employer shall ensure the protection, health, safety, morals and normal development of the childM %4b7 )he employer shall institute measures to prevent the childCs e&ploitation or discrimination ta!ing into account the system and level of remuneration, and the duration and arrangement of wor!ing timeM and %P )he employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and s!ills ac2uisition of the child. %.n the above e&ceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a wor! permit from the 1epartment of *abor and 8mployment which shall ensure observance of the above re2uirements. %=or purposes of this Article, the term %child' shall apply to all persons under eighteen 4167 years of age.' Sec. ;. )he same Act, as amended, is hereby further amended by adding new sections to be denominated as Sections 1#9A, 1#90, 1#9+, and 1#91 to read as follows/ %Sec. 1#9A. @ours of <or! of a <or!ing +hild. 5 Hnder the e&ceptions provided in Section 1# of this Act, as amended/ %417 A child below fifteen 41-7 years of age may be allowed to wor! for not more than twenty 4#B7 hours a wee!/ ?rovided, )hat the wor! shall not be more than four 4 7 hours at any given dayM %4#7 A child fifteen 41-7 years of age but below eighteen 4167 shall not be allowed to wor! for more than eight 467 hours a day, and in no case beyond forty 4 B7 hours a wee!M %4;7 (o child below fifteen 41-7 years of age shall be allowed to wor! between eight oCcloc! in the evening and si& oCcloc! in the morning of the following day and no child fifteen 41-7 years of age but below eighteen 4167 shall be allowed to wor! between ten oCcloc! in the evening and si& oCcloc! in the morning of the following day.' %Sec. 1#91. ?rohibition Against <orst =orms of +hild *abor. 5 (o child shall be engaged in the worst forms of child labor. )he phrase %worst forms of child labor' shall refer to any of the following/ %417 All forms of slavery, as defined under the %Anti9 traffic!ing in ?ersons Act of #BB;', or practices similar to slavery such as sale and traffic!ing of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflictM or %4#7 )he use, procuring, offering or e&posing of a child for prostitution, for the production of pornography or for pornographic performancesM or %4;7 )he use, procuring or offering of a child for illegal or illicit activities, including the production and traffic!ing of dangerous drugs and volatile substances prohibited under e&isting lawsM or %4 7 <or! which, by its nature or the circumstances in which it is carried out, is ha3ardous or li!ely to be harmful to the health, safety or morals of children, such that it/ %a7 1ebases, degrades or demeans the intrinsic worth and dignity of a child as a human beingM or %b7 8&poses the child to physical, emotional or se&ual abuse, or is found to be highly stressful psychologically or may prejudice moralsM or %c7 .s performed underground, underwater or at dangerous heightsM or %d7 .nvolves the use of dangerous machinery, e2uipment and tools such as power9driven or e&plosive power9actuated toolsM or

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SUN TZU NOTES


%e7 8&poses the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which re2uires the manual transport of heavy loadsM or %f7 .s performed in an unhealthy environment e&posing the child to ha3ardous wor!ing conditions, elements, substances, co9agents or processes involving ioni3ing, radiation, fire, flammable substances, no&ious components and the li!e, or to e&treme temperatures, noise levels, or vibrationsM or %g7 .s performed conditionsM or under particularly difficult

4b7 )he use, procuring, offering or e&posing of a child for prostitution, for the production of pornography or for pornographic performancesM 4c7 )he use, procuring or offering of a child for illegal or illicit activities, including the production or traffic!ing of dangerous drugs or volatile substances prohibited under e&isting lawsM or 4d7 <or! which, by its nature or the circumstances in which it is carried out, is ha3ardous or li!ely to be harmful to the health, safety or morals of children, such that it/ i. 1ebases, degrades or demeans the intrinsic worth and dignity of a child as a human beingM or ii. 8&poses the child to physical, emotional or se&ual abuse, or is found to be highly stressful psychologically or may prejudice moralsM or iii. .s performed underground, underwater or at dangerous heightsM or iv. .nvolves the use of dangerous machinery, e2uipment and tools such as power9driven or e&plosive power9actuated toolsM or v. 8&poses the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which re2uires the manual transport of heavy loadsM or vi. .s performed in an unhealthy environment e&posing the child to ha3ardous wor!ing conditions, elements, substances, co9agents or processes involving ioni3ing, radiation, fire, flammable substances, no&ious components and the li!e, or to e&treme temperatures, noise levels or vibrationsM or 1A8S). vii. .s performed under particularly difficult conditionsM or viii. 8&poses the child to biological agents such as bacteria, fungi, viruses, proto3oa, nematodes and other parasitesM or i&. .nvolves the manufacture or handling of e&plosives and other pyrotechnic products. S8+).$( ". ?rohibition on the 8mployment of +hildren in +ertain Advertisements. R (o child below 16 years of age shall be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, into&icating drin!s, tobacco and its by9products, gambling or any form of violence or pornography. +@A?)8, ; 8&ceptions to the ?rohibition S8+).$( 7. 8&ceptions and +onditions. R )he following shall be the only e&ceptions to the prohibition on the employment of a child below 1- years of age/ 4a7 <hen the child wor!s under the sole responsibility of hisEher parents or guardian, provided that only members of the childTs family are employed. 4b7 <hen the childTs employment or participation in public entertainment or information is essential, regardless of the e&tent of the childTs role. Such employment shall be strictly under the following conditions/ i. )he total number of hours wor!ed shall be in accordance with Section 1- of these ,ulesM

%h7 8&poses the child to biological agents such as bacteria, fungi, viruses, proto3oans, nematodes and other parasitesM or %i7 .nvolves the manufacture or handling e&plosives and other pyrotechnic products.' of

Section -. Section 1 of the same Act is hereby amended to read as follows/ 8Sec. .4. Pro6!*!t!o o t6e E)7#o+)e t o& C6!#$re ! Cert"! A$5ert!se)e ts . 5 (o child shall be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, into&icating drin!s, tobacco and its byproducts, gambling or any form of violence or pornography.' De+art:ent Or6er No. #13"2 series of '""2 AR-les an6 reg-lations i:+le:enting re+-bli5 a5t no. ('4% a:en6ing r.a. 7#%"$ as a:en6e6B +@.*1 *A0$, ,efers to any wor! or economic activity performed by a child that subjects himEher to any form of e&ploitation or is harmful to hisEher health and safety or physical, mental or psychosocial development. +@A?)8, # ?rohibition on the 8mployment of +hildren S8+).$( . >eneral ?rohibition. R 8&cept as otherwise provided in these ,ules, no child below 1years of age shall be employed, permitted or suffered to wor!, in any public or private establishment.S8+).$( -. ?rohibition on the 8mployment of +hildren in <orst =orms of +hild *abor. R (o child shall be engaged in the worst forms of child labor. )he phrase Sworst forms of child laborS shall refer to any of the following/ 4a7 All forms of slavery, as defined under the SAnti9traffic!ing in ?ersons Act of #BB;S, or practices similar to slavery such as sale and traffic!ing of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict.

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 13 of 75

SUN TZU NOTES


ii. )he employment does not endanger the childTs life, safety, health and morals, nor impair the childTs normal developmentM iii. )he child is provided with at least the mandatory elementary or secondary educationM and iv. )he employer secures a wor! permit for the child in accordance with Section 651# of these ,ules. +@A?)8, ,e2uirements to Avail of 8&ceptions to 8mployment ?rohibition S8+).$( 6. <or! ?ermit. R 8&cept as provided in Section 1;, no child below 1- years of age shall be allowed to commence wor! without a wor! permit. An employer must first secure a wor! permit from the ,egional $ffice of the 1epartment having jurisdiction over the wor!place of the child. .n cases where the wor! is done in more than one wor!place falling under the jurisdiction of more than one ,egional $ffice, the application shall be made with the ,egional $ffice having jurisdiction over the principal office of the employer. @owever, at least two days prior to the performance of the wor!, the employer shall inform the ,egional $ffice having jurisdiction over the wor!place of the activities to be underta!en involving the child. S8+).$( 9. ,e2uirements for the .ssuance of <or! ?ermit. R )he employer shall submit to the appropriate ,egional $ffice the following/ 4a7 A duly accomplished and verified application for wor! permit containing the following information/ i. )erms and conditions of employment including hours of wor!, number of wor!ing days, remuneration, and rest period, which shall be in accordance with lawM ii. Measures to ensure the protection, health, safety, morals, and normal development of the child, including but not limited to the following/ 1. comfortable wor!place and ade2uate 2uartersM #. brea! or rest periods in comfortable day beds or couchesM ;. clean and separate dressing rooms and toilet facilities for boys and girlsM . provision for ade2uate meals and snac!s and sanitary eating facilityM -. provision of all the necessary assistance to ensure the ade2uate and immediate medical and dental attendance and treatment to an injured or sic! child in case of emergency. 4b7 8&cept when the child is below seven years old/ i. ?roof that the child is enrolled and regularly attending elementary or secondary school classes, consisting of certificate of enrolment for the current year or current school identification or report cardM or ii. .f the child is not enrolled, a brief description of the program for education, training and s!ills ac2uisition for the child, in accordance with Section 194b7 of these ,ules. 4c7 An authenticated copy of the childTs 0irth +ertificate or a +ertificate of *ate ,egistration of 0irth issued by the (S$ or the cityEmunicipal registrarM 4d7 A medical certificate issued by a licensed physician stating that heEshe has personally e&amined the child for whom a wor! permit is being secured, and that the child is fit to underta!e the wor! in which heEshe is to be engaged. Such certificate must bear in print the certifying physicianTs full name and hisEher license numberM 4e7 )wo passport si3e photographs of the childM

4f7 <hen the employer is the parent, guardian, or a family member other than the parent of the child, heEshe shall present any valid document such as latest passport, latest postalEcompany identification card, and driverTs license establishing hisEher identity. A legal guardian is re2uired to present a duly authenticated proof of legal guardianship while a family member shall present any proof of relationship to the childM 4g7 <hen the employer is in public entertainment or information, heEshe shall submit a certified true copy of the employerTs business permit or certificate of registration and a written employment contract to be concluded between the employer and the childTs parents or guardian and approved by the 1epartment. An e&press agreement of the child to the provisions of the contract is needed when such child is between seven and below 1- years of age. S8+).$( 1B. Application =ee. R )he employer shall pay an application fee of $ne @undred ?hilippine ?esos 4?1BB.BB7 to cover administrative costs. )his amount may be reviewed and adjusted by the Secretary of *abor and 8mployment from time to time subject to applicable regulations. S8+).$( 11. Action on the Application. R <ithin three wor!ing days from the employerTs compliance with Sections 651B, the ,egional $ffice shall re2uire the appearance of the childTs parent, guardian, or employer, or the child himself or herself as may be appropriate, to validate the information indicated in the application and to educate such parent, guardian, or employer, on child labor laws and regulations. )he ,egional $ffice, through the ,egional 1irector, shall issue the wor! permit within three days from compliance with all the foregoing re2uirements. (on9compliance with the re2uirements shall automatically result in the denial of the application. .n such instances, the application shall be deemed not filed and the ,egional $ffice shall immediately return it to the applicant, indicating the re2uirements that were not complied with. S8+).$( 1#. :alidity of <or! ?ermit. R )he wor! permit shall state the period of its validity based on the employment contract or the application for wor! permit, as the case may be. @owever, the period of validity shall in no case e&ceed one year. S8+).$( 1;. 8mployment of Spot 8&tras. R .n public entertainment or information, the re2uirements for the issuance of wor! permit stated in Sections 651# shall not be applicable to the employment of spot e&tras or those being cast outright on the day of the filming or taping. .nstead, the

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 14 of 75

SUN TZU NOTES


employer shall file a notice with the ,egional $ffice where the wor! is to be performed that it will underta!e activities involving child wor!. )he notice shall be in the form prescribed by the 1epartment and shall state the appro&imate number of child wor!ers to be employed, the date, place and time the wor! is to be performed, and an underta!ing that the employment shall be in conformity with ,epublic Act (o. 9#;1 and these ,ules. B. UNDER SPECIAL LAWS B. I " %orH0re#"te$ or e)7#o+)e t e 5!ro )e t, " e)7#o+er !s 7ro6!*!te$ &ro) "sH! ' seJ@"# &"5or &ro) " + ! $!5!$@"# "s " co $!t!o ! t6e 6!r! ' or ! t6e e)7#o+)e t o& s"!$ ! $!5!$@"#. to post9employment, including hiring, promotion or assignment, based on the actual, perceived or suspected @.: status of an individual is prohibited. )ermination from wor! on the sole basis of actual, perceived or suspected @.: status is deemed unlawful. A. No e t!t+, %6et6er 7@*#!c or 7r!5"te, s6"## $!scr!)! "te "'"! st " G@"#!&!e$ $!s"*#e$ 7erso *+ re"so o& $!s"*!#!t+ ! re'"r$ to Ko* "77#!c"t!o 7roce$@res, t6e 6!r! ', 7ro)ot!o , or $!sc6"r'e o& e)7#o+ees, e)7#o+ee co)7e s"t!o , Ko* tr"! ! ', " $ ot6er ter)s, co $!t!o s, " $ 7r!5!#e'es o& e)7#o+)e t.

REPUBLIC ACT NO. /2// LM"' " C"rt" &or D!s"*#e$ Perso sM Q@"#!&!e$ I $!5!$@"# %!t6 " D!s"*!#!t+ shall mean an individual with a disability who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires Sec. 12. D!scr!)! "t!o o E)7#o+)e t. R (o entity, whether public or private, shall discriminate against a 2ualified disabled person by reason of disability in regard to job application procedures, the hiring, promotion, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. )he following constitute acts of discrimination/ 4a7 *imiting, segregating or classifying a disabled job applicant in such a manner that adversely affects his wor! opportunitiesM 4b7 Hsing 2ualification standards, employment tests or other selection criteria that screen out or tend to screen out a disabled person unless such standards, tests or other selection criteria are shown to be job9related for the position in 2uestion and are consistent with business necessityM 4c7 Htili3ing standards, criteria, or methods of administration that/ 417 have the effect of discrimination on the basis of disabilityM or 4#7 perpetuate the discrimination of others who are subject to common administrative control. 4d7 ?roviding less compensation, such as salary, wage or other forms of remuneration and fringe benefits, to a 2ualified disabled employee, by reason of his disability, than the amount to which a non9disabled person performing the same wor! is entitledM 4e7 =avoring a non9disabled employee over a 2ualified disabled employee with respect to promotion, training opportunities, study and scholarship grants, solely on account of the latterTs disabilityM 4f7 ,e9assigning or transferring a disabled employee to a job or position he cannot perform by reason of his disabilityM 4g7 1ismissing or terminating the services of a disabled employee by reason of his disability unless the employer can

REPUBLIC ACT NO. /A// LA t!0SeJ@"# H"r"ss)e t Act o& .--2M S8+).$( ;. .or0! Education or (rainin4 1'elated! Se?ual @arassment 9efined& 9 <or!, education or training9related se&ual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a wor! or training or education environment, demands, re2uests or otherwise re2uires any se&ual favor from the other, regardless of whether the demand, re2uest or re2uirement for submission is accepted by the object of said Act. C"D I " %orH0re#"te$ or e)7#o+)e t e 5!ro )e t, seJ@"# 6"r"ss)e t !s co))!tte$ %6e ? 417 )he se&ual favor is made , or in granting said individual favorable compensation, terms of conditions, promotions, or privilegesM or the refusal to grant the se&ual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive ordiminish employment opportunities or otherwise adversely affect said employeeM /. A e)7#o+er !s 7ro6!*!te$ &ro) $!scr!)! "t! ' ! " + &or) &ro) 7re0 e)7#o+)e t to 7ost e)7#o+)e t, ! c#@$! ' 6!r! ' *"se$ o t6e "ct@"#, 7erce!5e$ or s@s7ecte$ HI4 st"t@s o& " ! $!5!$@"#. Co tro# Act o&

REPUBLIC ACT NO. A2,4 LP6!#!77! e A!$s " $ Pre5e t!o .--AM

A,).+*8 :.. 1.S+,.M.(A)$,A A+)S A(1 ?$*.+.8S SECTION 12. )iscri!ination in t'e *or+ lace& R 1iscrimination in any form from pre9employment

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 15 of 75

SUN TZU NOTES


prove that he impairs the satisfactory performance of the wor! involved to the prejudice of the business entity/ ?rovided, however, )hat the employer first sought to provide reasonable accommodations for disabled personsM 4h7 =ailing to select or administer in the most effective manner employment tests which accurately reflect the s!ills, aptitude or other factor of the disabled applicant or employee that such tests purports to measure, rather than the impaired sensory, manual or spea!ing s!ills of such applicant or employee, if anyM and 4i7 8&cluding disabled persons from membership in labor unions or similar organi3ations. -. No *" H s6"## e)7#o+ c"s@"# or o re'@#"r 7erso e# o too #e 't6+ 7ro*"t!o "r+ 7erso e# ! t6e co $@ct o& !ts *@s! ess ! 5o#5! ' *" H $e7os!ts

Art. ./,1. (o contract which practically amounts to involuntary servitude, under any guise whatsoever, shall be valid. RE4ISED PENAL CODE Art 2/2. S#"5er+.9 )he penalty of prision mayor and a fine of not e&ceeding 1B,BBB pesos shall be imposed upon anyone who shall purchase, sell, !idnap, or detain a human being for the purpose of enslaving him. .f the crime be committed for the purpose of assigning the offended party to some immoral traffic, the penalty shall be imposed in its ma&imum. Art 2/1. EJ7#o!t"t!o o& c6!#$ #"*or.0 the penalty of prision correccional in its minimum and medium periods and a fine not e&ceeding -BB pesos shall be imposed upon anyone, who under the prete&t of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of a minor, shall, against the latterCs will, retain him in his service. Art 2/4. Ser5!ces re $ere$ @ $er co)7@#s!o ! 7"+)e t o& $e*t.0 )he penalty of arresto mayor in its ma&imum period to prision correccional in its minimum period shall be imposed upon any person, who, in order to re2uire or enforce the paymebt of a debt, shall compel the debtor to wor! for him, against his will, as household servant or farm laborer. Art 2/A. EJ7#o!t"!o o& )! ors.0 the penalty of prision correccional in its minimum and medium periods and a fine not e&ceeding -BB pesos shall be imposed upon/ 1. #. Any person who shall cause any boy or girl under 1" years of age to perform any dangerous feat of balancing, physical strength or contortion. Any person, who, being an acrobat, gymnast, ropewal!er, diver, wild animal tamer, or circus manager or engaged in a similar calling , shall employ in e&hibitions of this !inds, children under 1" years of age who are not his children or descendants. Any person engaged in any of the callings enumerated in the ne&t preceding paragraph who shall employ any descendant of his under 1# years of age in such dangerous e&hibitions. Any ascendant, guardian, teacher, or person entrusted in any capacity with the care of a child under 1" years of age, who shall deliver such child gratuitously to any person following any of the callings enumerated in paragraph # hereof, or to any habitual vagrant or beggar.

REPUBLIC ACT NO. A/-. L3e er"# B" H! ' L"%s o& 2,,,M Sec 22.4. +onsistent with the provisions of ,epublic Act (o. 1 B-, otherwise !nown as the Aan0s Secrecy La/, no ban! shall employ casual or non regular personnel on too lengthy probationary personnel in the conduct of its business involving ban! deposits. RA -2,A LA t!0tr"&&!cH! ' o& Perso s Act o& 2,,1M 4d7 Force$ L"*or and Slavery 9 refer to the e&traction of wor! or services from any person by means of enticement, violence, intimidation or threat, use of force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt9bondage or deception. Sec. . Acts of )raffic!ing in ?ersons. 9 .t shall be unlawful for any person, natural or juridical, to commit any of the following acts/ 4a7 )o recruit, transport, transferM harbor, provide, or receive a person by any means, including those done under the prete&t of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, se&ual e&ploitation, &orce$ #"*or, slavery, involuntary servitude or debt bondageM 4b7 )o introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under ,epublic Act (o. "9--, any =ilipino woman to a foreign national, for marriage for the purpose of ac2uiring, buying, offering, selling or trading himEher to engage in prostitution, pornography, se&ual e&ploitation, &orce$ #"*or, slavery, involuntary servitude or debt bondageM IN4OLUNTAR( SER4ITUDE

;.

.f the delivery shall have been made in consideration of ant price, compensation or promise, the penalty shall in every case be imposed in its ma&imum period. .n either case, the guardian or curator convicted shall also be removed from office as guardian or curator, and in the case of the parents of the child, they may be deprived temporarily or perpetually, in the discretion of the court, of their parental authority.

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 16 of 75

SUN TZU NOTES


many situations, however, the words %wages' and %salary' are SA($(AM$HS. K;- Am. Fur. Sec. ";, p. 9"9 97L $ur S+ reached the same conclusion, the words %wages' and %salary' are in essence synonymous. EC-itable )CIB vs. Sa6a5 .R. No. %#277'$ =-ne !$ '""# <A>8 SA($(AM$HS <.)@ SA*A,,AM 1.S).(+).$( M8,8*A S8MA().+S )he distinction between salary and /a4e in ,aa was for the purpose of Article 17B6 of the +ivil +ode which mandates that, %the laborerCs wage shall not be subject to e&ecution or attachment, e&cept for debts incurred for food, shelter, clothing and medical attendance.' .n labor law, however, the distinction appears to be merely semantics. 2aramount and Evan4elista may have involved wage earners, but the petitioner in Espejo was a >eneral Manager with a monthly salary of ?9,BBB.BB plus privileges. )hat /a4e and salary are synonymous has been settled in Son4co v& 3ational Labor 'elations Commission. <e said/ 0roadly, the word %salary' means a recompense or consideration made to a person for his pains or industry in another manCs business. <hether it be derived from %salarium,' or more fancifully from %sal,' the pay of the ,oman soldier, it carries with it the fundamental idea of compensation for services rendered. ndeed! there is eminent authority for holdin4 that the /ords B/a4es; and Bsalary; are in essence synonymous 4<ords and ?hrases, :ol. ;6 ?ermanent 8dition, p. citing @op!ins vs. +romwell, 6(.A.S.6;9, 6 1, 69 App. 1iv. 61M ;6 Am. Fur. 9"7. %Salary,' the etymology of which is the *atin word %salarium,' is often used interchangeably with %wage', the etymology of which is the Middle 8nglish word %wagen'. 0oth words generally refer to one and the same meaning, that is, a reward or recompense for services performed. *i!ewise, %pay' is the synonym of %wages' and %salary' 40lac!Cs *aw 1ictionary, -th 8d7. & & & FAIR DA(NS WA3E FOR A FAIR DA(NS LABOR )AL vs. NLRC R 11%1( =-ne ''$ %(!( %.f there is no wor! performed by the employee there can be no wage or pay unless the laborer was able, willing and ready to wor! but was prevented by management or was illegally loc!ed out, suspended or dismissed. <here the employeeCs dismissal was for a just cause, it would neither be fair nor just to allow the employee to recover something he has not earned and could not have earned.' SSS v. SSS S-+ervisorDs 9nion R L34%!4' %"&'4&!' %<here the failure of wor!ers to wor! was not due to the employerCs fault, the burden of economic loss suffered by the employees should not be shifted to the employer. 8ach party must bear his own loss.' EQUAL PA( FOR EQUAL WOR:

-.

Any person who shall induce any child under 1" years of age to abandon the home of its ascendants, guardians, curators, or teachers to follow any person engaged, in any of the callings mentioned in paragraph # hereof, or to accompany any habitual vagrant or beggar.

DO No. 4, Ser!es o& .--- LH"I"r$o@s WorH " $ Act!5!t!es &or Perso s Be#o% .A +e"rs o& "'eM See full te&t under topic on prohibitions prior to hiring.

DOLE Me)o C!r. No. 2 ser!es o& .--A LTec6 !c"# 3@!$e#! es &or C#"ss!&+! ' H"I"r$o@s " $ No 0 H"I"r$o@s Est"*#!s6)e ts, WorH7#"ces " $ WorH ProcessesM, see p. -6- =$O DO NO. B20,4, SERIES OF 2,,4 See full te&t under topic on prohibitions prior to hiring.

HIRIN3 OF EMPLO(EES RA /-2,, sec 11C*D, ART I4 LNe% E#ectr!c"# E '! eer! ' L"%M RA A4-2, Sec 14CCD, ART I4 LP6!#!77! e Mec6" !c"# E '! eer! ' Act o& .--AM

IV. WAGES & WAGE RATIONALIZATION ACT


WA3E AND SALAR(= CONCEPT WA3E 4S. SALAR( <A>8 applies to the compensation for manual labor, s!illed or uns!illed, paid at stated times, and measured by the day, wee!, month, or season. .ndicates inconsiderable pay for a lower and less responsible character of employment. SA*A,A 1enotes a higher degree of employment or a superior grade of services, and implies a position or office. Suggestive of a larger and more permanent or fi&ed compensation for more important service. 0y some of the authorities, the word %wages' in its ordinary acceptance, has a less e&tensive meaning than the word %salary', %wages' being ordinarily restricted to sums paid to artisans, mechanics, laborers, and other employees of li!e class, as distinguished from the compensation of cler!s, officers of public corporations, and public offices. .n

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 17 of 75

SUN TZU NOTES


ISAE v. E-is-:bing .R. No. %'!!21 =-ne %$ '""" %)his doctrineElegal truism means that persons who wor! with substantially e2ual 2ualification, s!ill, effort Q responsibility, under similar conditions should be paid similar salaries, notwithstanding its international character. .f an employer accords employees the same position and ran!, the presumption is that these employees perform e2ual wor!. )here is no evidence that foreign9hires perform #-U more efficiently or effectively than local9hires. 0oth groups have similar functions and responsibilities, which they perform under similar conditions. )he %dislocation factor' and the foreign9hires %limited tenure' also cannot serve as valid bases for the distinction in salary rates. )he dislocation factor and limited tenure affecting foreign9hires are ade2uately compensated by certain benefits accorded to them which are not enjoyed by the local9hires such as housing, transportation, shipping cost, ta&es, and home leave travel allowance. <e find the point9of9hire classification employed by respondent school to justify the distinction in the salary rates of foreign9hires and local9hires to be an invalid classification. )here is no reasonable distinction between the services rendered by foreign9 hires and local9hires.' 8mployees in the ?hilippines, if they are performing similar functions and responsibilities under similar wor!ing conditions, should be paid under this principle.

MabeGa vs. NLRC R %%!1"# "2&%!&(7 %,8IH.S.)8S =$, =A+.*.).8S )$ 08 +$(S.18,81 AS A( .()8>,A* ?A,) $= A( 8M?*$A88CS <A>8 4deductibility7 1. Must be customarily furnished by the employer to the employeeM #. Must be charged at fair and reasonable valueM and ;. )he provision on deductible facilities must be voluntarily accepted by the employee in writing. More significantly, the food and lodging, or the electricity and water consumed by the petitioner were not facilities but supplements& A benefit or privilege granted to an employee for the convenience of the employer is not facility . )he criterion in ma!ing a distinction between the two not so much lies in the 0ind )food! lod4in4* but the purpose . +onsidering therefore that hotel wor!ers are re2uired to wor! different shifts and are e&pected to be available at various odd hours, their ready availability is a necessary matter in the operations of a small hotel, such as the private respondentCs hotel.' .f the re2uisites are all present, that facilities may ta!e the place of the cash payment of the employeeCs wage. )his is one e&ception of the re2uirement that an employeeCs wage shall be paid in legal tender, you cannot pay it in !ind. Art 97f provides that %wage' includes the fair and reasonable value, as determined by the Secretary of *abor, of board, lodging, or other facilities customarily furnished by the employer to the employee.

RI3HT TO A LI4IN3 WA3E 4 A,) D..., Sec ; par #7 (o jurisprudence yet

)his means that an employer may provide, for instance, food and housing to his employees but he may deduct their values from the employeesC wages. S)8?S )$ 18)8,M.(8 .= A =A+.*.)A $, ($)/ ascertain the purpose for whose benefitJ 8mployer or employeeJ .f for employee, is it deductible or notJ4apply the ; re2uisites for deductibility 7

FACILITIES ;SUPPLEMENT= EMPLO(EE BENEFITS FACILITIES= $e&! e$ BooF III$ R-le 7$ Se5. 1 %=A+.*.).8S' shall include articles or services for the benefit of the employee or his family but shall not include tools of the trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the employerCs business. AtoF3Big We6ge Assn v. AtoF3Big We6ge Co. (7 +*il '(2 %=A+.*.).8S are items of e&pense necessary for the laborerCs and his familyCs e&istence and subsistence so that by e&press provision of law, they form part of the wage and when furnished by the employer are deductible therefrom, since if they are not so furnished the laborer would spend and pay for them just the same.'

SUPPLEMENTS= $e&! e$ AtoF3Big We6ge Assn v. AtoF3Big We6ge Co. (7 +*il '(2 %SH??*8M8()S constitute e&tra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnin4s or /a4es.' =A+.*.).8S :S. SH??*8M8()S =acilities are wage9deductible, supplements are not. )he classification of an item of e&pense as a facility or a supplement will depend on the 7@r7ose and not on the !ind. So if it is principally or mainly for the benefit of the employee, classify as facilities, and the fair and reasonable value of that can be considered as deductible from the employeeCs wage.

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 18 of 75

SUN TZU NOTES


(ot determinative of employer9employee relationship. )here are certain laws which e&clude certain employees from enjoying certain benefits depending on the methods of fi&ing their compensation. 8&. 1;th mo. ?ay which e&cludes job or tas! basis and purely on commission employees, under Art 6#, wor!ers paid by results are e&empted from overtime pay, service incentive leave, etc. 4conditions of employment7.

EMPLO(EE BENEFITS WOR:ERNS LIEN Art ./,/ CC? )he laborerCs wages shall be a lien on the goods manufactured or the wor! done. Re"so ? 0y virtue of this new lien, the laborers who are not paid by an unscrupulous and irresponsible industrialist or manager may by legal means have the goods manufactured thru the sweat of their brow sold, and out of the proceeds get their salary, returning the e&cess, if any K,eport +ode +ommission, p.1 L 3oo$s M" @&"ct@re$ or t6e %orH $o e ,efers to personal property, not real property. And even here, the lien is allowed the laborer only if he was directly employed or engaged by the owner. )he rule does not apply if contractor, with men under him, had underta!en the job. EXEMPTION FROM EXECUTION OR ATTACHMENT Art ./,A CC? )he laborerCs wages shall not be subject to e&ecution or attachment, e&cept for debts incurred for food, shelter, clothing and medical attendance. 3R? <ages are not subject to e&ecution. EJce7t!o ? 1ebts incurred for support such as food, shelter, clothing, medical attendance. )he rule applies even when the wages are still in the possession of the employer whose properties may have been attached.

WA3E= $e&! e$ Art -/C&D <A>8 paid to employee shall mean the remuneration or earnings, however designated, capable of being e&pressed in terms of money, whether fi&ed or ascertained on a t!)e, t"sH, 7!ece, or co))!ss!o *"s!s, or ot6er )et6o$ o& c"#c@#"t! ' t6e s") e, which is payable by an employer to an employee under a written or unwritten contract of employment for wor! 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 *abor, of board, lodging, or other facilities customarily furnished by the employer to the employee. A. TIME SPENT $nce the agreed period of wor! is completed, the compensation is earned and becomes due regardless of result. )he standard forms of compensation based on time spent are salaries or wages by the day, wee!, or monthly.

2 CLASSIFICATIONS OF EMPLO(EES BASED ON TIME SPENT 1. #. 1aily9paid Monthly9paid

.. DAIL(0PAID EMPLO(EES )hose employees who are paid on the days actually wor!ed e&cept unwor!ed regular holidays when they are paid their basic wage if they are present or a leave with pay on the wor!ing day preceding the regular holiday. %(o wor! no pay' Advantage/ =le&ibility in the reduction of wor! force fro any given period according to circumstances such as slac! in demand, non9availability of materials, etc.

S"#"r!es $@e to 'o5er )e t e)7#o+ees c" ot *e '"r !s6e$ *e&ore t6e+ "re 7"!$ to t6e e)7#o+ees co cer e$ *ec"@se? 1. )he incentive for wor! would be lost #. >enerally, the state cannot be suedM and ;. =inallly, technically, before disbursements, the money still belongs to the government. Art ./,- CC? )he employer shall neither sei3e nor retain any tool or other articles belonging to the laborer. (o sei3ure or retention by the employer

,8M81A =$, 1$<(S.O.(> +ompressed wor!wee! ,educe wor!ing days )emporary suspension of operations of not more than " months 4no wor! no pay7

METHODS OF FIXIN3 COMPENSATION A. 0. +. 1. )ime Kdaily and monthly paid wor!ersL +ommission Fob or tas! basis ?iece9rate basis Kpayment by resultsL

2. MONTHL(0PAID EMPLO(EES ?aid everyday of the month including unwor!ed rest days, special days and regular holidays. .t is the standard compensation rate for managerial personnel, professionals, administrative employees and other white collar wor!ers, including clerical employees and higher grade s!illed wor!ers.

.M?$,)A(+8 $= M8)@$1S $= =.D.(> +$M?8(SA).$(

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 19 of 75

SUN TZU NOTES


A1:A()A>8/ relative economy in record!eeping, and higher morale of employees resulting from association of this method with tenure and permanency. >OB OR TAS: RATE A flat or fi&ed sum for each particular job or tas! completed, without regard to the number f hours actually spent in the performance or completion. .t has been rationali3ed because article 1# of this ,A provides for the standards and criteria that should guide the agency of government when it comes to fi&ing the minimum wage. .t is noted that under the standard criteria, that the congress has tried to weigh the factors involving the employers, as well as the factors involving the laborers when it comes to fi&ing of employeeCs wage in order to rationali3e it. 0efore ,A "7#7, it was only MalacaVang through a ?1 that dictates how much should be the minimum wage in the ?hilippines. Most often than not, those employers in the far9flung areas are adversely affected because the fi&ing of minimum wage is not rationali3ed. .t does not ta!e into consideration, for e&ample, the capitali3ation of the employer, the profit e&pected, the cost of living in a particular area. <ith the advent of ,A "7#7, the law deems it necessary that there shall be tandard criteria in fi&ing the employeeCs wage. St" $"r$s or Cr!ter!" &or M! !)@) W"'e F!J! ' Art .24 RA B/2/ D. More advantageous from those paid on time spent. COMMISSION A1:A()A>8/ 8ncourage the wor!er to be more productive. =i&ed percentage is effected on sales. a. )he demand for living wagesM b. <age adjustment vis9W9vis the consumer price inde&M c. )he cost of living and changes or increases thereinM d. )he needs of wor!ers and their families e. )he need to induce industries to invest in the countrysideM f. .mprovements in standards of living g. )he prevailing wage levelsM h. =air return of the capital invested and capacity to pay of employersM i. 8ffects on employment generation and family incomeM and j. )he e2uitable distribution of income and wealth along the imperatives of economic and social development. #. )o promote productivity9improvement and gain9sharing measures to ensure a decent standard of living for the wor!ers and their family. ;. )o guarantee the rights of labor to its just share in the fruits of production . )o enhance employment generations in the countryside through industry dispersal. -. )o allow business and industry reasonable returns on investment, e&pansion and growth. ". )he state shall promote co##ect!5e *"r'"! ! ' as the primary mode of setting wages and other terms and conditions of employmentM and whenever necessary, the minimum wage rates shall be adjusted in a fair and e2uitable manner, considering e&isting regional disparities in the cost9of9living and other sociao9economic factors and the national economic and social development plans. L!)7ort" tM )his is an important policy because it promotes collective bargaining as a mode of settling labor disputes

B.

Appropriate only on the following conditions/ a. b. C. PIECE WOR:, OR B( THE OUTPUT IN TERMS OF WOR: UNITS a. b. c. <ithout regard to time spent. *abor contributed by each determinable and separable from each other )he value of the labor input for any particular stage is standard.

TA:E NOTE? <or!ers shall be paid the minimum wage even if paid on job or piece rate basis. =.D.(> 8M?*$A88S <A>8 a. b. wage increase resolving wage distortion

RA B/2/ WA3E RATIONALIOATION ACT ,#&-RTANC(. this law which amended the labor code will tell us the different government agencies involved in the fi&ing of wages and also how to resolve wage distortion4procedure in case wage distortion results in fi&ing wage7 ?H,?$S8/ was intended to rationali3e wagesM =.,S), by providing for full9time boards to police wages round9the9cloc!. S8+$(1, by giving the boards enough powers to achieve this objective. POLICIES OF THE STATE 1. )o rationali3e the fi&ing of the minimum wage. L!)7ort" tM

IlaH at B-Flo6 ng ManggagaHa vs. NLRC R (%(!"$ "#&'7&(% %)he policy of the state is promoting collective bargaining as a mode of settling labor dispute.

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 20 of 75

SUN TZU NOTES


)here was a wage distortion affecting the establishment and what the employees did was to stage a stri!e in order to compel the employer to solve wage distortion. )he S+ said ($. .f ,A "7#7 is e&amined, stri!e is not provided as a solution in resolving wage distortion. .t should be through collective bargaining. )herefore, the S+ declared the stri!e as illegal because the ,ules .mplementing ,A "7#7 provides for a specific and detailed approach on how to resolve wage distortion short of stri!e or loc!out.' 3O4ERNMENT A3ENCIES IN4OL4ED A. N"t!o "# W"'es " $ Pro$@ct!5!t+ Co))!ss!o LNWPCM ART. .2, LC. Creation of 3ational .a4es and 2roductivity Commission& 9 )here is hereby created a (ational <ages and ?roductivity +ommission, hereinafter referred to as the +ommission, which shall be attached to the 1epartment of *abor and 8mployment 41$*87 for policy and program coordination. 4As amended by ,epublic Act (o. "7#7, Fune 9, 19697. 1etermines the officesEhead2uarters of the respective ,egional )ripartite <ages and ?roductivity 0oards. Art 1#1+ 4As amended by ,epublic Act (o. "7#7, Fune 9, 19697 grants the (<?+ the power to prescribe rules and guidelines for the determination of appropriate wages in the country. 8&ecutive 1irector shall be appointed by the ?resident of the ?hil upon recommendation of the Secretary of 1$*8 # 1eputy 1irectors shall be appointed by the ?resident of the ?hil upon recommendation of the Secretary of 1$*8 B. Re'!o "# Tr!7"rt!te W"'es " $ Pro$@ct!5!t+ Bo"r$s LRTWPBM ART. .22 LC. Creation of 'e4ional (ripartite .a4es and 2roductivity Aoards& 9 )here is hereby created ,egional )ripartite <ages and ?roductivity 0oards, hereinafter referred to as ,egional 0oards, in all regions, including autonomous regions as may be established by law. )he +ommission shall determine the officesEhead2uarters of the respective ,egional 0oards. 4As amended by ,epublic Act (o. "7#7, Fune 9, 19697. )he S+ is of the opinion that +ongress meant the boards to be creative in resolving the annual 2uestion of wages without labor and management !noc!ing on the legislatureCs door at every turn. )he +ourtCs opinion is that if ,A "7#7 intended the board alone to set floor wages, the Act would have no need for a board but an accountant to !eep trac! of the latest consumer price inde&, or better would have +ongress done it as the need arises, as the legislature, prior to the Act has done so for years. L/M

Co)7os!t!o

Art 1## *+ 4As amended by ,epublic Act (o. "7#7, Fune 9, 19697.

Note? >uidelines issued by the ,)<?0 without the approval of, or worse, contrary to those promulgated by the (<?+ are ineffectual, void and cannot be the source of rights and privileges. Co)7os!t!o L/M

1. +hairman ,egional 1irector of 1$*8 #. :ice9+hairmen ,egional 1irector of (81A ,egional 1irector of 1). ;. )wo 4#7 members each from wor!ers and employers sectors who shall be appointed by the ?resident of the ?hil, upon the recommendation of the Secretary of 1$*8, to be made on the basis of the list of nominees submitted by the wor!ers and employers sectors, respectively. Secretariat Assisting each 0oard PROHIBITION A3AINST IN>UNCTION Art .2B LC. &ro'ibition Against ,n/unction.0 (o preliminary or permanent injunction or temporary restraining order may be issued by any court, tribunal or other entity against any proceedings before the +ommission or the ,egional 0oards 4As amended by ,epublic Act (o. "7#7, Fune 9, 19697. NWPC 3@!$e#! es No. ,,.0-2

Art 1#1 *+ 4As amended by ,epublic Act (o. "7#7, Fune 9, 19697.

1. 8&9$fficio +hairman Secretary of 1$*8 #. 8&9$fficio :ice9+hairman 1irector9>eneral of (81A ;. )wo 4#7 members each from wor!ers and employers sectors who shall be appointed by the ?resident of the ?hil upon recommendation of the Secretary of 1$*8 to be made on the basis of the list of nominees submitted by the wor!ers and employers sectors, respectively. . )he 8&ecutive 1irector shall also be a member of the +ommission Secretariat Kheaded by 8&ecutive 1irectorL

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SUN TZU NOTES


Re5!se$ R@#es o& Proce$@res o F!J! ', Ser!es o& .--2 M! !)@) W"'e . .t raises the standard of competition among employers, since it would protect the fair9minded employer who voluntarily pays a wage that supports the wage earner from the competition of the employer who operates at lower cost only by reason of paying his wor!ers a wage below subsistence. -. @elps employees pay off the needed social security program. )his program would re2uire contribution from the employees themselves, and would be unjust to re2uire such a contribution of those whose wages are not enough for their subsistence. .t is unreasonable to as! a man to set aside something for the future when he does not have enough to eat today.

this is adopted and promulgated by (<?+ pursuant to Art 1#1+ *+ 4As amended by ,epublic Act (o. "7#7, Fune 9, 19697 these are rules governing proceedings in the (<?+ and the ,)<?0 in the fi&ing of minimum wage rates. =or full te&t refer to =$O p 7" STATUTOR(

CONCEPTS= BASIC WA3E= MINIMUM WA3E= WA3E ORDER

BASIC WA3E means all the remuneration or earnings paid by an employer to a wor!er for services rendered on normal wor!ing days and hours but does not include cost9of9living9allowances, profit sharing payments, premium payments, 1;th month pay or other monetary benefits which are not considered as part of or integrated into the regular salary of the wor!ers on the date the act became effective. 4definition of terms .,, of ,A"7#77 STATUTOR( MINIMUM WA3E is the lowest wage rate fi&ed by law that an employer can pay his wor!ers. 4definition of terms .,, of ,A"7#77 WA3E ORDER refers to the order promulgated by ,)<?0 pursuant to its wage fi&ing authority. PURPOSE OF MINIMUM WA3E 1. )o promote productivity9improvement and gain9 sharing measures to ensure a decent standard of living for the wor!ers and their families. #. )o guarantee the rights of labor to its just share in the fruits of production. ;. )o enhance employment generation in the countryside through industry dispersal and to allow business and industry reasonable returns on investment, e&pansion and growth. . )o affirm, as the +onstitution e&presses it, labor as a primary social economic force. -. )hat wages are distributed evenly, and more importantly, social justice is subserved. AD4ANTA3ES OF MINIMUM WA3E 1. ,educes the evils of the %sweating system'. "*eating "$ste!. the e&ploiting of wor!ers at wages so low as to be insufficient to meet the bare cost of living. #. 0enefits directly the low9paid employees, who now receive inade2uate wages on which to support themselves and their families. ;. 0enefits all wage earners indirectly by setting a floor below which their remuneration cannot fall.

DISAD4ANTA3ES OF MINIMUM WA3E 1. #. wage distortion. .t causes

;. . -.

".

May lead to unemployment. 2rofessor <in4 declared %it is clear that the effectG to throw out employment to all persons whose 2ualifications are not such that enable them to earn more than the legal minimum. .f wages are forced up to the point higher than what the wor!er is economically worth, the power wor!er may be dismissed and the law is anti9social. .t would pauperi3e the wor!er, destroy their self9respect and ma!e them miserable. 0rings depression and thus impoverish the nation. +onstitutes infringement to the wor!erCs right to labor as he could not dispose of the same under terms and conditions he may see fit. <ill tend to become the ma&imum.

EMPLO(EENS RI3HT TO A LI4IN3 WA3E 4S. RI3HT OF EMPLO(ER TO REASONABLE RETURN OF IN4ESTMENT 0A*A(+.(> $= ,.>@)S <hile labor is entitled to a just share in the fruits of production, the enterprise has an e2ually important right not only to reasonable returns on investment but also to e&pansion and growth. )he +onstitution recogni3es that the private sector plays an indispensable role something the state cannot do without. At the same breath, labor is called the primary social economic force. 0ecause one is %indispensable' and the other is %primary', how can it be said that one is more important, or deserves greater protectiBn than the otherJ 4A3ucena 0oo! . p1;7

POWER TO ISSUE WA3E ORDERS Art .22 LC. (he 'e4ional Aoards shall have the follo/in4 po/ers and functions in their respective jurisdictionC b. )o determine and fi& minimum wage rates applicable in their region, provinces or industries therein and to issue the

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SUN TZU NOTES


corresponding wage orders subject to guidelines issued by the +ommission 4As amended by ,epublic Act (o. "7#7, Fune 9, 19697. <age $rders issued by the 0oards cover only private sector wor!ers, e&cept for household helpers and persons in the personal employ of another, including family drivers.

>* +pposition& Any party may file his opposition to the petition on or before the initial hearing, copy furnished the petitionerEs. )he opposition shall be filed with the appropriate 0oard in ten 41B7 typewritten legible copies which shall contain the following/ 4a7 nameEs and addressEes of the oppositorEs and signatureEs of authori3ed officialEsM 4b7 reasons or grounds for the oppositionM and 4c7 relief sought. 5* Consolidation of 2etitions& .f there is more than one petition filed, the 0oard may, motu propio or on motion of any party, consolidate these for purposes of conducting joint hearings or proceedings to e&pedite resolutions of petitions. ?etitions received after publication of an earlier petition need not go through the publicationEposting re2uirement. 6* Assistance of +ther ,overnment and 2rivate +r4ani-ations& )he 0oard may enlist the assistance and cooperation of any government agency or private person or organi3ation to furnish information in aid of its wage fi&ing function. ?,$?8, ?A,)A *egitimate labor organi3ation or the employer .f employed in an establishment, the employee cannot go to court and file a petition for a wage increase because the employee is not considered a proper party. .t must be an employer or a legitimate labor organi3ation. 0$A,1 May deny, grant or not ta!e an action <age $rder if granted, maybe issued by the 0oard pursuant to its rule9ma!ing power and ta!es effect 1days after publication. Q? ,emedy for the issuance of <age $rder A? Appeal to (<?+ not later than ten 41B7 days from the date of publication of the $rder. Q? >roundsJ A? 4a7 non9conformity with prescribed guidelines andEor proceduresM 4b7 2uestions of lawM 4c7 grave abuse of discretion. Q? 1oes it suspend the effectivity of the <$J A? (o, post a bond e2uivalent to the increase embodied in the wage order if you want it suspended. RE3IONAL TRIPARTITE WA3ES AND PRODUCTI4IT( BOARD LRTWPBM Metro+olitan BanF an6 Tr-st Co:+any$ In5. vs. NW)C an6 RTW)B3 Region II .R. No. %224''$ "'&'#&"7

PROCEDURES IN MINIMUM WA3E FIXIN3 Sect!o 1& 2rocedures in 6inimum .a4e Di?in4&

1a2 #otu &ro rio b$ t'e 3oard <henever conditions in the region, province or industry so warrant, the 0oard may, motu proprio or as directed by the +ommission, initiate action or in2uiry to determine whether a wage order should be issued. )he 0oard shall conduct public hearings in the manner prescribed under this ,ule and ,ule .... )he 0oard may also conduct consultations with concerned sectorsE industries. 1b2 3$ 4irtue of a &etition 5iled "* Dorm and Content of 2etition& Any party may file a verified petition for wage increase with the appropriate 0oard in ten 41B7 typewritten legible copies which shall contain the following/ 4a7 nameEs, and addressEes of petitionerEs and signatureEs of authori3ed officialEsM 4b7 grounds relied upon to justify the increase being soughtM 4c7 amount of increase being soughtM 4d7 area andEor industry covered. 2* Aoard Action& .f the petition conforms with the re2uirements prescribed in the preceding sub9section b.1., the 0oard shall conduct public hearings in the manner prescribed under this ,ule and ,ule ..., to determine whether a wage order should be issued. )he 0oard may also conduct consultations with concerned sectorsEindustries. 3* 2ublication of 3otice of 2etitionE2ublic @earin4& A notice of the petition andEor public hearing shall be published in a newspaper of general circulation in the region andEor posted in public places as determined by the 0oard. )he notice shall include the nameEs and addressEes of the petitionerEs, the subject of the petition and the dateEs, placeEs and time of the hearings. )he publication or posting shall be made at least fifteen 41-7 days before the date of initial hearing and shall be in accordance with the suggested form attached as Anne& SAS.

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SUN TZU NOTES


%.n line with ,A (o. "7#7Cs policy, (<?+ was created to prescribe rules and guidelines for the determination of appropriate minimum wage and productivity measures at the regional, provincial or industry levels. .t authori3ed ,)<?0 to determine and fi& the minimum wage rates in their respective regions, provinces or industries therein and issue the corresponding wage orders, subject to the guidelines issued by the (<?+. ?ursuant to its wage9 fi&ing authority, the ,)<?0 may issue wage orders which set the daily minimum wage rates based on the standards or criteria set by Art. 1# of the *abor +ode. APPEAL PROCEDURE LNWPCM )he +ommission may review the <age $rder issued by the 0oard motu proprio or upon appeal (o more appeal from (<?+ ,emedy is ,ule "- 4grave abuse, +A7, then ,ule - 42uestions of law, S+7M note/ not ,ule ; 4because it e&cludes (<?+7 affected by the $rder of the corresponding increase, in the event such $rder is affirmed. )ag3asa Steel WorFs v. CA R %###27? "4&4%&"# %(o right to wage increase for employees already receiving minimum wageM no across the board effect.' MetrobanF. vs. NW)C @ RTW)B3 Region II R %224''$ ,ebr-ary '#$ '""7 I<hen it issues a wage order, the ,)<?0 e&ercises a 2uasi9 legislative power and not 2uasi9judicial power. )he decision of ,)<?0 is appealable to (<?+, not to +A. )he +ourt finds that Sec. 1, <age $rder (o. ,B#9B; is void insofar as it grants a wage increase to employees earning more than the minimum wage rate and valid with respect to employees earning the prevailing minimum wage rate. )he +ourt in Employers Confederation of the 2hilippines v& 3ational .a4es and 2roductivity Commission declared that there are two ways of fi&ing the minimum wage/ the %floor9 wage' method which involves the fi&ing of a determinate amount to be added to the prevailing statutory minimum wage rates and the %salary9ceiling' method in which the wage adjustment was to be applied to employees receiving a certain denominated salary ceiling. .n the instant case, the ,)<?0 did not set a wage level nor a range to which a wage adjustment or increase shall be added. .nstead it granted an across9the9board wage increase of ?1to all employees and wor!ers of ,egion ... .n doing so, it e&ceeded its authority by e&tending the coverage of the <age $rder to wage earners receiving more than the prevailing minimum wage rate, without a denominated salary ceiling. .t granted additional benefits not contemplated by ,A (o. "7#7.' WA3E ORDERS APPLICABLE IN CEBU, MANDAUE AND LAPU0LAPU CIT( 000000000INSERT NEW WA3E ORDER000000000000000 EXEMPTION FROM MINIMUM WA3E 8&emption from minimum wage may be by/ a. $peration of *aw 4e&. Art 96 *+7M or b. Application 4(<?+ >uidelines7 A. B( APPLICATION .. NWPC 3@!$e#! es No. ,. Ser!es o& .--B Re5!se$ 3@!$e#! es o EJe)7t!o &ro) W"'e or$ers 8D8M?)81 =,$M <A>8 $,18,S .SSH81 0A ,)<?0 1. 1istressed 8stablishments #. (ew 0usiness 8nterprises ;. ,etailEService 8stablishments ,egularly 8mploying (ot More )han )en <or!ers . 8stablishments Adversely Affected by (atural +alamities

Sect!o .& Appeal to the Commission . Any party aggrieved by a <age $rder issued by the 0oard may appeal such $rder to the +ommission by filing a verified appeal with the 0oard in three 4;7 typewritten legible copies,. )he appeal shall be accompanied by a memorandum of appeal which shall state the grounds relied upon and the arguments in support of the appeal. )he 0oard shall serve notice of the appeal to concerned parties. =ailure to file an appeal within the reglementary period fi&ed under this section or to submit the re2uired documents shall be a ground for dismissal of the appeal. Sect!o 2. ,rounds for Appeal. An appeal may be filed on the following grounds/ 4a7 non9conformity with prescribed guidelines andEor proceduresM 4b7 2uestions of lawM 4c7 grave abuse of discretion. Sect!o 1. (ransmittal of 'ecords& .mmediately upon receipt of the appeal, the 0oard Secretariat shall transmit to the +ommission Secretariat the appeal and a copy of the subject <age $rder together with the complete records of the case and all relevant documents. Sect!o 4. 2eriod to Act on Appeal& )he +ommission shall decide on the appeal within si&ty 4"B7 days from the filing of said appeal. Sect!o 2& Effect of Appeal. )he filing of the appeal does not operate to stay the $rder unless the party appealing such $rder shall file with the +ommission an underta!ing with a surety or sureties satisfactory to the +ommission for payment to employees

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SUN TZU NOTES


Note? )he 0oard, upon strong and justifiable reasons, subject to the review or approval by the +ommission may e&empt establishments other than those enumerated above if they are in accord with the rationale of e&emption. See page "9 =$O Appendi& O for the full te&t )hese are rules on e&emption from compliance with the prescribed wage increasesEcost of living allowances granted by the ,)<?0s. association, having the 2ualifications as defined in Section ;4a7 hereof may apply for registration as 0M08. Sect!o A. EJe)7t!o &ro) t6e Co5er"'e o& t6e M! !)@) W"'e L"% 5 )he 0M08s shall be e&empt from the coverage of the Minimum <age *aw/ ?rovided, )hat all employees covered under this Act shall be entitled to the same benefits given to any regular employee such as social security and healthcare benefits. POWER TO ISSUE RULES ON EXEMPTION= NWPC ART. .2.. &o*ers and functions of t'e Co!!ission & 9 )he +ommission shall have the following powers and functions/ C*D )o formulate policies and guidelines on wages, incomes and productivity improvement at the enterprise, industry and national levelsM 4As amended by ,epublic Act (o. "7#7, Fune 9, 19697 Po%er to 3r" t EJe)7t!o s= RTWPB ART. .22. Creation of Regional Tri artite 6ages and &roductivit$ 3oards. 5 &&& )he ,egional 0oards shall have the following powers and functions in their respective territorial jurisdictions/ CeD )o receive, process and act on applications for e&emption from prescribed wage rates as may be provided by law or any <age $rderM and Re"so &or EJe)7t!o ? A wage e&emption is intended to assist financially beleaguered companies to meet their labor cost without endangering the viability of the company. Nasi+it L-:ber vs. NW)C '!( SCRA ##7 %)he power to prescribe guidelines is lodged in the (<?+, not in the ,)<?0. )his is clearly provided for in Article 1#1 of ,A "7#7, amending the *abor +ode. .t grants the (<?+, not the ,)<?0, the power to prescribe rules and guidelines for the determination of minimum wage and productivity measure. <hile the ,)<?0 may issue wage orders under Article 1##4b7 of the *abor +ode, such orders must be under the guidelines of the (<?+. @owever, the (<?+ has the power not only to prescribe guidelines to govern wage but also to issue e&emptions therefrom, as the said rule provides that whenever a wage order provides for an e&emption, application thereto must be filed with the appropriate 0oard which shall process the same, subject to guidelines which the ,)<?0 implements. Significantly, the (<?+ authori3ed the ,)<?0 to issue e&emptions from wage orders, but subject to its review and approval. Since the (<?+ never assented to >uideline (o.; of the ,)<?0, the said guideline is inoperative and cannot be used by the latter in deciding or acting on petitionersC application for e&emption.' RC)I vs. National Wages Co-n5il '"7 SCRA 1!% ?H,?$S8 $= 8S)A0*.S@M8() <A>8 8D8M?).$(M 1.S),8SS81

B. B( OPERATION OF LAW 2. EJe)7t!o @ $er t6e L"*or Co$e

Art -A. A lication of Title. 000 )his title K<agesL shall not apply to farm tenancy or leasehold, domestic service and persons wor!ing in their respective homes in needle wor! or in any cottage industry duly registered in accordance with law. ,elate this to employment of home wor!ers, page ;; =$O. .f a home wor!er performs needle wor! in or at his home, that person is e&empted from employing the minimum wage by operation of law. So employers of these employees are not obliged to comply with the minimum wage. .f you are employing a house helper, you are not covered by the minimum wage by operation of law. )hat means you do not have to file an application for e&emption, and you do not have to comply with the prevailing minimum wage. U $er S7ec!"# L"%

1. EJe)7t!o

B"r" '"+ M!cro B@s! ess E ter7r!ses Act o& 2,,2 LRA -./AM Sect!o 1. 1efinition of )erms

4a7 PB"r" '"+ M!cro B@s! ess E ter7r!se ,S hereinafter referred to as 0M08, refers to any business entity or enterprise engaged in the production, processing or manufacturing of products or commodities, including agro9processing, trading and services, whose total assets including those arising from loans but e&clusive of the land on which the particular business entityTs office, plant and e2uipment are situated, shall not be more than )hree M!##!o Pesos CP1,,,,,,,,.,,D )he Above definition shall be subjected to review and upward adjustment by the SM81 +ouncil, as mandated under ,epublic Act (o. "977, as amended by ,epublic Act (o. 6#69. =or the purpose of this Act, FserviceF shall e&clude those rendered by any one, who is duly licensed government after having passed a government licensure e&amination, in connection with the e&ercise of oneTs profession. Sect!o 2. W6o "re E#!'!*#e to Re'!ster 5 Any person, natural or juridical, or cooperative, or

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 25 of 75

SUN TZU NOTES


%)he purpose of wage e&emptions is to help financially distressed companies meet their labor costs without endangering the e&istence or viability of the firm upon which both management and labor depend for a living. Hnder the spirit of <age $rder (o. ", it is the actual ability of a firm to spend for its current needs and costs and not how the assets and liabilities of a firm may appear in the technical jargon of higher accounting principles which is important. )rue, the retained earnings account constitutes a companyTs accumulated profits of losses. @owever, it is not enough to treat said earnings as SearningsS in the real sense of the word for purposes of wage e&emptions. =or purposes of compliance with the law on wage e&emptions, however, the retained earnings arising from appraisal increment do not represent hard cash but merely theoretical increases resulting from upward valuations of old fi&ed assets. )here is no income or profit from the sale of goods or services. (o income is reali3ed from the reappraisal of fi&ed assets until such a time as the machinery, e2uipment, and other fi&ed assets are sold or disposed of in the event of a li2uidation of assets. )he (<?+ ruling treats the revaluation increment as similar to the sale of fi&ed assets. .n the same way, however, that machinery and e2uipment should not be sold in order to meet increases in the wages of wor!ers 4for this would destroy not only the company but the employment of the wor!ers themselves7 so should a similar attitude be adopted when machinery or e2uipment is not sold but merely revalued. $n 1ecember 1", 196", the (<?+, through then Secretary Augusto 0. Sanche3 9 its chairman, approved the application for e&emption of ,+?. and stated, among other things, that/ S)he 8&ecutive +ommittee, therefore, recogni3es the necessity to set aside technicalities re2uired by e&isting criteria under (<+ ?olicy >uidelines (os. " and 6 and bestow greater significance to the actual financial condition of ,+?..S (<?+ found that ,+?.Ts compliance with the <age $rders would result in the companyTs financial dislocation and, accordingly, granted it the prayed for e&emption. <e see no reason from the records why a different treatment should apply in the following year.' C )lanas Co::er5ial vs. NLRC 4"4 SCRA 2( ,8)A.* 8S)A0*.S@M8() %?etitioners invo!e the e&emption provided by law for retail establishments which employ not more than 1B wor!ers to justify their non9liability for the salary differentials in 2uestion. )hey insist that ?*A(AS is a retail establishment leasing a very small and cramped stall in the 1ivisoria Mar!et which cannot accommodate more than 1B wor!ers in the conduct of its business. )he S+ is unconvinced. )he records disclosed de los ,eyesC clear entitlement to salary differentials. Section 4c7 of ,A "7#7 categorically provides/

,etail or service establishments regularly employing not more than 1B wor!ers may be e&empted from the applicability of this Act upon application with and as determined by the appropriate ,egional 0oard in accordance with the applicable rules and regulations issued by the +ommission. <henever an application for e&emption has been duly filed with the appropriate ,egional 0oard, action on any complaint for alleged non9compliance with this Act shall be deferred pending resolution of the application for e&emption by the appropriate ,egional 0oard. .n the event that the applications for e&emptions are not granted, employees shall receive the appropriate compensation due them as provided for by this Act plus the interest of 1U per month retroactive to the effectivity of this Act 4emphasis supplied7.' WA3E DISTORTION= CONCEPT ; ELEMENTS ART. .24. "tandards7Criteria for !ini!u! *age fi8ing. &&& As used herein, a W"'e D!stort!o shall mean a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional 2uantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on s!ills, length of service, or other logical bases of differentiation.&&& 4As amended by ,epublic Act (o. "7#7, Fune 9, 19697. ELEMENTS OF WA3E DISTORTION BanFar6 E:+loyees 9nion J WorFers Allian5e Tra6e 9nions v. NLRC @ BanFar6$ R No. %2"#!($ ,eb. %7$ '""2 %8*8M8()S $= <A>8 1.S)$,).$( 1. An e&isting hierarchy of positions with corresponding salary rates. #. A significant change in the salary rate of a lower pay class without a concomitant increase in the salary rate of a higher one. ;. 8limination of the distinction between the two levels. . 8&istence of the distortion in the same region of the country. 0asic assumption is there e&ists a classification of employees that establishes distinctions among them on some relevant or legitimate bases.' =or salary distortion to e&ist, as defined in Art. 1# , the law does not re2uire that there be an elimination or total abrogation of 2uantitative wage or salary differencesM a severe contraction is enough. )his means, briefly, the disappearance or virtual disappearance of pay differentials between lower and higher positions in an enterprise because of compliance with a wage order. An employee has reason to complain whose pay level advantage is e2ualed or almost e2ualed or overta!en through a mandated wage increase. =or instance, if a

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SUN TZU NOTES


Q? .s an employer legally obliged to try and correct a wage distortionJ A? .t appears so, under Art. 1# 9 .t says that Sthe employer and the union shall ne4otiate to correct the distortions.S .f there is no union, Sthe employer and wor!ers shall endeavor to correct such distortions.S Q? Must the previous pay advantage be restoredJ A? )hat indeed is the aim but not necessarily to the last peso. An appreciable differential, a significant pay gap, should suffice as correction of the distortion. Q? <hen does wage distortion happenJ A? <hen the employer grants an increase only to a certain group of employees drastically reducing or eliminating the normal salary differential or gap. Poss!*#e C"@ses o& W"'e D!stort!o 1. #. ;. . >overnment decreed increase through wage orders. Merger of establishments Kconfusion or elimination of the status of the employeeL .ncrease granted by the employers ?assage of ,A "7#7 or the <age ,ationali3ation Act

wage order raised a messengerTs daily pay from ?196 to ?##;, almost e2ualing a technicianTs pay of ?##-, the technician may complain of salary distortion because his pay advantage 4due to nature of job7 has been significantly reduced from ?#7 to ?# only. EJ")7#e? .f %A' was receiving a daily salary which was ?1BB higher than that of %0' who is %ACs' subordinate, but, because of a wage order increase given to %0', the ?1BB advantage disappeared or was reduced to say, ?;B, then it may be said that the salary distinction between A and 0 has been distorted. %A' may complain of a salary distortion. 1isparity in pay of two or more employees holding the same position does not necessarily mean salary distortion referred to in Art 1# . )here is no distortion if the employees, whose wages are being compared, are located in different regions. )his is because wage9fi&ing has been regionali3ed by ,A "7#7. @ow to rectify the distortion is not specified in the law. )he +ourt has pointed out that through Art. 1# the law recogni3es the validity of ne4otiated /a4e increases to correct wage distortions. )he legislative intent is to encourage the parties to see! solution to the problem of wage distortions through voluntary negotiation or arbitration, rather than stri!es, loc!outs, or other concerted activities of the employees or management.

)r-banFers Asso5iation vs. )r-6ential BanF an6 Tr-st Co:+any 4"' SCRA 72 %1istortion does not arise when a wage order gives the employees in one branch of a ban! higher compensation than that given to their counterparts in other regions occupying the same pay scale, who are not covered by the said wage order. .n short, the implementation of the wage orders in one region but not in others does not in itself necessarily result in wage distortion.' BanFar6 E:+loyees 9nion J WorFers Allian5e Tra6e 9nions vs. NLRC @ BanFar6 R No. %2"#!($ ,eb. %7$ '""2 )he 0oard of 1irectors of 0an!ard, .nc. approved a %new salary scale' made retroactive for the purpose of ma!ing its hiring rate competitive in the industryCs labor mar!et. )his increased the hiring rate of new employees by ?1BBB for levels . Q : and ?9BB for levels .., ... and .:. ?etitioner pressed for the increase in the salary of its old, regular employees. 0an!ard replied that there was no obligation on the part of the management to grant to all its employees the same increase in and across the board manner. S+ ruled that/ %Since it is clear that there is no hierarchy of positions between the newly hired Q regular employees of 0an!ard, first element is wanting. )he formulation of wage structure through the classification of employees is a matter of management judgment and discretion. .n relation to the ;rd element, the said gap is not significant as to obliterate or result in severe contraction of the

)he +ourt has adopted the following formula as Sjust and e2uitableS to correct a salary distortion/

Mini <age X, 99999999999999 Z U Actual salary Adjustment

&

YX . ?rescribed .ncrease Z 1istortion

Any issue involving wage distortion is not a valid ground for a stri!e or loc!out. 8ach region has a regional wage board which, in fi&ing the wage level, considers criteria or standards e&isting in the region. Since those criteria vary from one region to another, the pay levels of comparable jobs also tend to vary among regions. 0ut pay disparity of same or comparable jobs in different regions cannot be considered wage distortion. <age distortion, in other words, involves comparison of jobs located in the same region. 8&amination of alleged salary distortion is limited to jobs or positions in the same employer within a region. )herefore, the comparison of salaries has to be intra1re4ion not inter1re4ion re4ion.

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SUN TZU NOTES


intentional 2ualitative differences in the salary rates between the employee group. =urthermore, petitioner cannot legally obligate 0an!ard to correct the alleged %wage distortion' as the increase in the wages and salaries of the newly hired was not due to a prescribed law on wage order. ,eliance in Metro )ransit $ng vs. (*,+ is misplaced because there e&isted a %company practice' in that case, in which not present in the instant case.' METHODS OF RESOL4IN3 WA3E DISTORTION ; TWO METHODS IN DETERMININ3 WA3ES METHODS OF RESOL4IN3 WA3E DISTORTION 40rought about by the enactment or passage of a wage order7 )he court has pointed out that thru the passage of Art 1# , the law recogni3es the validity of ne4otiated /a4e increases to correct wage distortion. )he legislative intent is to encourage the parties to see! solution to the problem of wage distortions through voluntary negotiation or arbitration, rather than stri!es, loc!outs, or other concerted activities of the employees or management. B. IF UNOR3ANIOED "D )he employer and the wor!ers should negotiate to correct the distortion. *D .f negotiations fail, the matter should be brought to the (ational +onciliation and Mediation 0oard 4(+M07 (+M0 has no compulsory power, can only conciliate but cannot decide a case.

?,$+81H,8 4a7 .nitiated by the filing of a complaint with the (+M0 on the ground of wage distortion. 4b7 =ill up the complaint form provided by the (+M0. 4c7 )he ,egional 1irector of the (+M0 will now issue a ($).+8 $= @8A,.(> directed to the employer inviting him to meet with them at a designated time, date, and place. 4d7 At the (+M0, the complainant 0 and the employer will have to be present. )his proceeding will be supervised by an (+M0 @earing $fficer. )his is entirely different from the first step because the third person 4(+M0 @earing $fficer7 now interferes and as!s the employers, %@ow much can you affordJ' And to the employees, %@ow much increase do you wantJ' .n so doing, in ta!es into consideration the financial capacity of the employer and the need of the wor!ers. 4e7 )he (+M0 will try AM.+A0*8 S8))*8M8(). to settle the dispute through

A. IF OR3ANIOED a7 )he matter should be brought to the grievance 4machinery7 procedure under their +0A. c7 .f no settlement is arrived at, the dispute should be submitted to voluntary arbitration 4voluntary arbitrator or panel of voluntary arbitrators7 (o number of :A specified by law (o prohibition of *abor Arbiter to be :oluntary Arbiter (+M0 has a list of :A 1ecision of :A is final and e&ecutory after 1B days from the receipt of the copy of the decision by the parties, however, no M, is allowed, a ),$ maybe applied with +A or S+ to stay e&ecution of the assailed judgment, and a ?etition for ,eview under ,ule ; may be made to +A for 2uestion of law or facts or both, then to S+ under ,ule -

8&ample/ 8mployer wants to pay ?1 increase. 8mployee wants ?- increase. (+M0 will settle for ?; and suggests this solution to both parties. 4f7 Should the employer refuse to accede to the remedy suggested by the (+M0, the (+M0 cannot ma!e negotiations to bind both parties because the main purpose of (+M0 is to conciliate and it will suggest that the parties submit to :$*H()A,A A,0.),A).$(. cD .f no settlement is arrived after 1B calendar days of conciliation, the dispute should be brought to the appropriate branch of the (*,+ for compulsory arbitration, which shall conduct continuous hearings and decide the dispute within #B calendar days from the time said dispute is submitted for compulsory arbitration. Appropriate branch of (*,+ means to *abor Arbiter 4 a complaint has to be filed7, then appealable to (*,+ in 1B calendar days 4no appeal7, remedy is ,ule "- to +A, then ,ule - to S+. union or collective

$,>A(.O81 8S)A0*.S@M8() ,efers to a firm or a company where there is a recogni3ed or certified e&clusive bargaining agreement. <@A) S@$H*1 08 +$()A.(81 .( A +0A 1. #. ;. . terms and conditions of employment wages hours of wor! procedure for resolving grievances

H($,>A(.O81 8S)A0*.S@M8() <here there is no recogni3ed bargaining agreement.

TWO METHODS IN DETERMININ3 WA3ES

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SUN TZU NOTES


A voluntary arbitrator Sis not a public tribunal imposed upon the parties by a superior authority which the parties are obliged to accept. @e has no general character to administer justice for a community. @e is rather part of a system of self9government created by and confined to the parties.S KMaurice S. )rotta, Arbitration of Labor Management 1isputes, American Management Association, (ew Aor!, 197 , p. 7;.L :oluntary arbitration, indeed, is a private judicial system. )he judge is called a :$*H()A,A A,0.),A)$,. )he power of voluntary arbitrator to try and decide the case is the same as that of a *abor Arbiter. )he parties can agree to select a *abor Arbiter as a voluntary arbitrator because it is as to the agreement of the parties. Arbitration may be initiated either by 17 a Submission Agreement or #7 by a 1emand or (otice invo!ing a collective agreement arbitration clause. Sometimes both instruments are used in a case. Although the contract may establish the breadth of the arbitratorTs power and the limits of his authority, his power may be more sharply defined in the submission agreement. .n ?hilippine conte&t, the SjudgeS in voluntary arbitration is called arbitrator, while that in compulsory arbitration is labor arbiter. ?roceedings are (on9litigious in nature, not governed by technical rules of procedure used in courts but due process is always observed.

E:+loyers Confe6eration of t*e )*ili++ines vs. NW)C '"% SCRA 71( )<$ <AAS $= =.D.(> )@8 M.(.MHM <A>8 1. =*$$,9<A>8 method which involves the fi&ing of a determinate amount to be added to the prevailing statutory minimum wage rates. #. SA*A,A9+8.*.(> method in which the wage adjustment was to be applied to employees receiving a certain denominated salary ceiling. %

)he first method was adopted in the earlier wage orders, while the latter method was used in ,A "" B and ,A "7#7. )he shift from the first method to the second method was brought about by labor disputes arising from wage distortions, a conse2uence of the implementation of the wage orders. )he shift from the first to the second method was due to the fact that the latter minimi3ed wage distortion disputes.

>URISDICTION O4ER WA3E DISTORTION DISPUTES LABOR ARBITRATION ,eference of a labor dispute to a third party for determination on the basis of evidence and arguments presented by such parties, who are bound to accept the decision. Ar*!tr"t!o )"+ *e c#"ss!&!e$ o t6e *"s!s o& o*#!'"t!o o %6!c6 !t !s *"se$, !t )"+ e!t6er *e? .. 4OLUNTAR( ARBITRATION .t is the policy of the State to encourage voluntary arbitration on all labor9management disputes. 0efore or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration. 4.mplementing ,ules, 0oo! :, ,ule D.D, Sec. -.7 1efined as a contractual proceeding whereby the parties to any dispute or controversy in order to obtain a speedy and ine&pensive final disposition of the matter, select a judge of their own choice and by consent, submit their controversy to him for determination. Hnder voluntary arbitration, the SjudgeS is named by the parties, pursuant to a voluntary arbitration clause in their collective agreement. @e is an impartial third person authori3ed by the parties to ma!e a final and binding decision or award.

:$*H()A,A A,0.),A)$, Any person accredited by the 0oard as suchM or Any person named or designated in the +0A by the parties to act as their voluntary arbitratorM or $ne chosen, with or without the assistance of the (+M0, pursuant to selection procedure agreed upon in the +0AM or Any official that may be authori3ed by the Sec of *abor to act as voluntary arbitrator upon the written re2uest and agreement or the parties to a labor dispute.

2. COMPULSOR( ARBITRATION ?rocess of settlement of labor disputes by a government agency Kor by other means provided by the governmentL which has the authority to investigate and to ma!e award which is binding on all the parties. ?arties are compelled to forgo their right to stri!e A disinterested person or party is usually appointed by the state. .t is compulsory because the law declares the dispute subject to arbitration, regardless of the consent of the parties.

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SUN TZU NOTES


a sworn certification of non9forum shopping as provided in the third paragraph of section ;, ,ule ". 41a7 S8+. #. &etition for ro'ibition .R<hen the proceedings of any tribunal, corporation, board, officer or person, whether e&ercising judicial, 2uasi9judicial or ministerial functions, are without or in e&cess of its or his jurisdiction, or with grave abuse of discretion amounting to lac! or e&cess of jurisdiction, and there is no appeal or any other plain, speedy, and ade2uate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may re2uire. )he petition shall li!ewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non9forum shopping as provided in the third paragraph of section ;, ,ule ". 4#a7 S8+. ;. &etition for !anda!us .R<hen any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully e&cludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and ade2uate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act re2uired to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. )he petition shall also contain a sworn certification of non9forum shopping as provided in the third paragraph of section ;, ,ule ". 4;a7 S8+. . 6'en and *'ere to file t'e etition .R)he petition shall be filed not later than si&ty 4"B7 days from notice of the judgment, order or resolution. .n case a motion for reconsideration or new trial is timely filed, whether such motion is re2uired or not, the petition shall be filed not later than si&ty 4"B7 days counted from notice of the denial of the motion. .f the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an officer or a person, it shall be filed with the ,egional )rial +ourt e&ercising jurisdiction over the territorial area as defined by the Supreme +ourt. .t may also be filed with the +ourt of Appeals or with the Sandiganbayan, whether or not the same is in aid of the courtCs appellate jurisdiction. .f the petition involves an act or an omission of a 2uasi9judicial agency, unless otherwise provided by the law or these rules, the petition shall be filed with and be cogni3able only by the +ourt of Appeals. .n election cases involving an act or an omission of a municipal or a regional trial court , the petition shall be

1one by the ,egional Arbitration 0ranch of (*,+ Krefer to Art #17L .t is an adversarial proceeding initiated by a complaint Kusually by a unionL for wage distortion before the *abor Arbiter. )he other party is re2uired to answer. .t is the *abor Arbiter who is clothed with the original and e&clusive authority to conduct compulsory arbitration under Art. #17. ?roceedings after a labor arbiterTs decision is brought up to the (ational *abor ,elations +ommission cannot be considered as part of the arbitration proceedings. )his is because in the appeal stage, the +ommission merely reviews the *abor ArbiterTs decision for errors of fact or law. .t does not duplicate the proceedings held at the *abor ArbiterTs level. )hus, the clause Fpendin4 final resolution of the case by arbitrationF should be understood to be limited only to the proceedings before the *abor Arbiter, so that when the latter rendered his decision, the case could be considered finally resolved by arbitration. KSee 2hilippine Airlines, .nc. vs& 3ational Labor ,elations +ommission, >.,. (o. --1-9, 9ec& 22! 1969.L )he +ommission itself, through any of its divisions, also conducts compulsory arbitration, but only in Snational interest casesS certified or referred to it by the 1$*8 secretary under Art. #";4g7.

APPEAL PROCEDURE IN COMPULSOR( AND 4OLUNTAR( ARBITRATION 000000000000000000 For

rese"rc60000000000000000000000000
SPECIAL CI4IL ACTION RULE B2 +8,).$,A,., ?,$@.0.).$( A(1 MA(1AMHS S8+).$( 1. &etition for certiorari .R<hen any tribunal, board or officer e&ercising judicial or 2uasi9judicial functions has acted without or in e&cess of its or his jurisdiction, or with grave abuse of discretion amounting to lac! or e&cess of jurisdiction, and there is no appeal, or any plain, speedy, and ade2uate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may re2uire. )he petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and

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SUN TZU NOTES


filed e&clusively with the +ommission on 8lections, in aid of its appellate jurisdiction. 1as a!ended b$ A.#. 07-7-12-"C2 RULE 41 A??8A*S =,$M )@8 +$H,) $= )AD A??8A*S A(1 IHAS.9FH1.+.A* A>8(+.8S )$ )@8 +$H,) $= A??8A*S S8+).$( 1. Scope.R)his ,ule shall apply to appeals from judgments or final orders of the +ourt of )a& Appeals and from awards, judgments, final orders or resolutions of or authori3ed by any 2uasi9judicial agency in the e&ercise of its 2uasi9judicial functions. Among these agencies are the +ivil Service +ommission, +entral 0oard of Assessment Appeals, Securities and 8&change +ommission, $ffice of the ?resident, *and ,egistration Authority, Social Security +ommission, +ivil Aeronautics 0oard, 0ureau of ?atents, )rademar!s and )echnology )ransfer, (ational 8lectrification Administration, 8nergy ,egulatory 0oard, (ational )elecommunications +ommission, 1epartment of Agrarian ,eform under ,epublic Act (o. ""-7, >overnment Service .nsurance System, 8mployees +ompensation +ommission, Agricultural .nventions 0oard, .nsurance +ommission, ?hilippine Atomic 8nergy +ommission, 0oard of .nvestments, +onstruction .ndustry Arbitration +ommission, and voluntary arbitrators authori3ed by law. 4n7 S8+. #. Cases not covered.R)his ,ule shall not apply to judgments or final orders issued under the *abor +ode of the ?hilippines. 4n7 S8+. ;. 6'ere to a eal.RAn appeal under this ,ule may be ta!en to the +ourt of Appeals within the period and in the manner herein provided, whether the appeal involves 2uestions of fact, of law, or mi&ed 2uestions of fact and law. 4n7 S8+. . &eriod of a eal.R)he appeal shall be ta!en within fifteen 41-7 days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is re2uired by law for its effectivity, or of the denial of petitionerCs motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a 2uo. $nly one 417 motion for reconsideration shall be allowed. Hpon proper motion and the payment of the full amount of the doc!et fee before the e&piration of the reglementary period, the +ourt of Appeals may grant an additional period of fifteen 41-7 days only within which to file the petition for review. (o further e&tension shall be granted e&cept for the most compelling reason and in no case to e&ceed fifteen 41-7 days. 4n7 S8+. -. @ow appeal ta!en..RAppeal shall be ta!en by filing a verified petition for review in seven 477 legible copies with the +ourt of Appeals, with proof of service of a copy thereof on the adverse party and on the court or agency a 2uo. )he original copy of the petition intended for the +ourt of Appeals shall be indicated as such by the petitioner. Hpon the filing of the petition, the petitioner shall pay to the cler! of court of the +ourt of Appeals the doc!eting and other lawful fees and deposit the sum of ?-BB.BB for costs. 8&emption from payment of doc!eting and other lawful fees and the deposit for costs may be granted by the +ourt of Appeals upon a verified motion setting forth valid grounds therefor. .f the +ourt of Appeals denies the motion, the petitioner shall pay the doc!eting and other lawful fees and deposit for costs within fifteen 41-7 days from notice of the denial. 4n7 S8+. ". +ontents of the petition.R)he petition for review shall 4a7 state the full names of the parties to the case, without impleading the court or agencies either as petitioners or respondentsM 4b7 contain a concise statement of the facts and issues involved and the grounds relied upon for the reviewM 4c7 be accompanied by a clearly legible duplicate original or a certified true copy of the award, judgment, final order or resolution appealed from, together with certified true copies of such material portions of the record referred to therein and other supporting papersM and 4d7 contain a sworn certification against forum shopping as provided in the last paragraph of section #, ,ule #. )he petition shall state the specific material dates showing that it was filed within the period fi&ed herein. 4#a7 S8+. 7. 8ffect of failure to comply with re2uirements.R )he failure of the petitioner to comply with any of the foregoing re2uirements regarding the payment of the doc!et and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. 4n7 S8+. 6. Action on the petition.R)he +ourt of Appeals may re2uire the respondent to file a comment on the petition, not a motion to dismiss, within ten 41B7 days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the 2uestions raised therein are too unsubstantial to re2uire consideration. 4"a7 S8+. 9. +ontents of comment.R)he comment shall be filed within ten 41B7 days from notice in seven 477 legible copies and accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers. )he comment shall 4a7 point out insufficiencies or inaccuracies in petitionerCs statement of facts and issuesM and 4b7 state the reasons why the petition should be denied or dismissed. A copy thereof shall be served on the petitioner, and proof of such service shall be filed with the +ourt of Appeals. 49a7 S8+. 1B. 1ue course.R.f upon the filing of the comment or such other pleadings or documents as may be re2uired or allowed by the +ourt of Appeals or upon the e&piration of the period for the filing thereof, and on the basis of the petition or the records the +ourt of Appeals finds prima facie that the court or agency concerned has committed errors of fact or law that would warrant reversal or modification of the award, judgment, final order or resolution sought to be reviewed, it may give due course to the petitionM otherwise, it shall dismiss the same. )he findings of fact of the court or agency concerned, when supported by substantial evidence, shall be binding on the +ourt of Appeals. 4n7 S8+. 11. )ransmittal of record.R<ithin fifteen 41-7 days from notice that the petition has been given due course, the

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SUN TZU NOTES


+ourt of Appeals may re2uire the court or agency concerned to transmit the original or a legible certified true copy of the entire record of the proceeding under review. )he record to be transmitted may be abridged by agreement of all parties to the proceeding. )he +ourt of Appeals may re2uire or permit subse2uent correction of or addition to the record. 46a7 S8+. 1#. 8ffect of appealR)he appeal shall not stay the award, judgment, final order of resolution sought to be reviewed unless the +ourt of Appeals shall direct otherwise upon such terms as it may deem just. 41Ba7 S8+. 1;. Submission for decision.R.f the petition is given due course, the +ourt of Appeals may set the case for oral argument or re2uire the parties to submit memoranda within a period of fifteen 41-7 days from notice. )he case shall be deemed submitted for decision upon the filing of the last pleading or memorandum re2uired by these ,ules or by the +ourt of Appeals. 4n7 RULE 42 A??8A* 0A +8,).$,A,. )$ )@8 SH?,8M8 +$H,) S8+).$( 1. 5iling of etition *it' "u re!e Court.RA party desiring to appeal by certiorari from a judgment, final order or resolution of the +ourt of Appeals, the Sandiganbayan, the +ourt of )a& Appeals, the ,egional )rial +ourt or other courts whenever authori3ed by law, may file with the Supreme +ourt a verified petition for review on certiorari. )he petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only 2uestions of law which must be distinctly set forth. )he petitioner may see! the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency. 1as a!ended b$ A.#. 07-7-12-"C2 S8+. #. Ti!e for filing9 e8tension .R)he petition shall be filed within fifteen 41-7 days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitionerCs motion for new trial or reconsideration filed in due time after notice of the judgment. $n motion duly filed and served, with full payment of the doc!et and other lawful fees and the deposit for costs before the e&piration of the reglementary period, the Supreme +ourt may for justifiable reasons grant an e&tension of thirty 4;B7 days only within which to file the petition. 41a, -a7 S8+. ;. 1oc!et and other lawful feesM proof of service of petition.RHnless he has theretofore done so, the petitioner shall pay the corresponding doc!et and other lawful fees to the cler! of court of the Supreme +ourt and deposit the amount of ?-BB.BB for costs at the time of the filing of the petition. ?roof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition. 41a7 S8+. . +ontents of petitionR)he petition shall be filed in eighteen 4167 copies, with the original copy intended for the court being indicated as such by the petitioner, and shall 4a7 state the full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower courts or judges thereof either as petitioners or respondentsM 4b7 indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was receivedM 4c7 set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the allowance of the petitionM 4d7 be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the cler! of court of the court a 2uo and the re2uisite number of plain copies thereof, and such material portions of the record as would support the petitionM and 4e7 contain a sworn certification against forum shopping as provided in the last paragraph of section #, ,ule #. 4#a7 S8+. -. 1ismissal or denial of petition.R)he failure of the petitioner to comply with any of the foregoing re2uirements regarding the payment of the doc!et and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. )he Supreme +ourt may on its own initiative deny the petition on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the 2uestions raised therein are too unsubstantial to re2uire consideration. 4;a7 S8+. ". ,eview discretionary.RA review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. )he following, while neither controlling nor fully measuring the courtCs discretion, indicate the character of the reasons which will be considered/ 4a7 <hen the court a 2uo has decided a 2uestion of substance, not theretofore determined by the Supreme +ourt, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme +ourtM or 4b7 <hen the court a 2uo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an e&ercise of the power of supervision. 4 a7 S8+. 7. ?leadings and documents that may be re2uiredM sanctions.R=or purposes of determining whether the petition should be dismissed or denied pursuant to section - of this ,ule, or where the petition is given due course under section 6 hereof, the Supreme +ourt may re2uire or allow the filing of such pleadings, briefs, memoranda or documents as it may deem necessary within such periods and under such conditions as it may consider appropriate, and impose the corresponding sanctions in case of non9filing or unauthori3ed filing of such pleadings and documents or noncompliance with the conditions thereof. 4n7 S8+. 6. 1ue courseM elevation of records.R.f the petition is given due course, the Supreme +ourt may re2uire the elevation of the complete record of the case or specified parts thereof within fifteen 41-7 days from notice. 4#a7

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S8+. 9. ,ule applicable to both civil and criminal cases.R)he mode of appeal prescribed in this ,ule shall be applicable to both civil and criminal cases, e&cept in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. 4n7 therefore be filed with the M)+ pursuant to 0? 1#9 as amended by ,A 7"917M or ;. . 0oth imprisonment and fine, at the discretion of the +ourt. ?aying double the unpaid benefitsEamounts owing the employees, provided that the ?ayment of .ndemnity shall not absolve the employer from criminal liability imposable under the *abor +ode.

V. VIOLATION OF WAGE ORDERS


DOUBLE INDEMNIT( AND IMPRISONMENT RA B/2/ L")e $e$ *+ RA A.AAM Sect!o .2. Any person, corporation, trust, firm, partnership, association or entity which refuses or fails to pay any of the prescribed increases or adjustments in the wage rates made in accordance with this Act shall be punished by a fine not less than )wenty9five thousand pesos 4?#-,BBB7 nor more than $ne hundred thousand pesos 4?1BB,BBB7 or imprisonment of not less than two 4#7 years nor more than four 4 7 years, or both such fine and imprisonment at the discretion of the court/ 2rovided, )hat any person convicted under this Act shall not be entitled to the benefits provided for under the ?robation *aw. S)he employer concerned shall be ordered to pay an amount e2uivalent to $o@*#e t6e @ 7"!$ *e e&!ts o%! ' to t6e e)7#o+ees? ?rovided, that payment of indemnity shall not absolve the employer from the criminal liability imposable under this Act. S.f the violation is committed by a corporation, trust or firm, partnership, association or any other entity the penalty of imprisonment shall be imposed upon the entityTs responsible officers, including, but not limited to, the president, vice9president, chief e&ecutive officer, general manager, managing director or partner.S =ailure or refusal to pay mandatory wage increase is considered a criminal offense under ,epublic Act (o. 6166, approved on Fune 11, 199". )he violator may be sentenced to imprisonment of not less than two 4#7 years nor more than four )>* years. @e may also be punished by a fine of ?#-,BBB to ?.$$.$$$.$$. Moreover, he shall be ordered to pay an amount e2uivalent to double the unpaid benefits owing to the employee.

Aside from the penal provision provided under ,A "7#7, there are provisions in the *abor +ode on the enforcement and recovery of minimum wage provisions. )here are general two provisions for the enforcement and recovery of minimum wage provisions 5 Articles "28 and "2#. ,emember that the minimum wage is fi&ed by a wage order and there is a built9in mechanism in the *abor +ode which provides the so9called enforcement tools for the recovery of wages, particularly the minimum wage provisions. Article 1#6 5 enforcement machinery in aid of the visitorial power of the Secretary of *abor. )his is described as in2uisitorial. <hyJ 0ecause the S$*8 in2uires 5 as! for documents, investigate, etc. Article 1#9 5 machinery of wage recovery via the administrative process initiated by a complaint. )his is described as adversarial. <hyJ 0ecause it re2uires a complaint for its initiation.

>URISDICTION Re'@#"r Co@rts RA /B-. A( A+) 8D?A(1.(> )@8 FH,.S1.+).$( $= )@8 M8),$?$*.)A( ),.A* +$H,)S, MH(.+.?A* ),.A* +$H,)S, A(1 MH(.+.?A* +.,+H.) ),.A* +$H,)S, AM8(1.(> =$, )@8 ?H,?$S8 0A)AS ?AM0A(SA 0*>. 1#9, $)@8,<.S8 N($<( AS )@8 SFH1.+.A,A ,8$,>A(.OA).$( A+) $= 196BS 0e it enacted by the Senate and @ouse of ,epresentatives of the ?hilippines in +ongress assembled/ S8+).$( 1. Section 19 of 0atas ?ambansa 0lg. 1#9, otherwise !nown as the SFudiciary ,eorgani3ation Act of 196B,S is hereby amended to read as follows/ SS8+. 19. Furisdiction in civil cases. 9 ,egional )rial +ourts shall e&ercise e&clusive original jurisdiction/ S417 .n all civil actions in which the subject of the litigation is incapable of pecuniary estimationM S4#7 .n all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved e&ceeds )wenty thousand pesos 4?#B,BBB.BB7 or, for civil actions in Metro Manila, where such value e&ceeds =ifty thousand pesos 4?-B,BBB.BB7 e&cept actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon

Pe "#t+ &or 4!o#"t!o o& t6e Prescr!*e$ I cre"se or A$K@st)e t ! t6e W"'e R"te CRA A.AAD? 1. #. ?ayment of a fine of not less than ?#-,BBB nor more than ?1BB,BBBM or .mprisonment for not less than # years nor more than years, the imprisonment being non9probationable. 4)he case should

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SUN TZU NOTES


the Metropolitan )rial +ourts, Municipal )rial +ourts, and Municipal +ircuit )rial +ourtsM S4;7 .n all actions in admiralty and maritime jurisdiction where the demand or claim e&ceeds $ne hundred thousand pesos 4?1BB,BBB.BB7 or, in Metro Manila, where such demand or claim e&ceeds )wo hundred thousand pesos 4?#BB,BBB.BB7M S4 7 .n all matters of probate, both testate and intestate, where the gross value of the estate e&ceeds $ne hundred thousand pesos 4?1BB,BBB.BB7 or, in probate matters in Metro Manila, where such gross value e&ceeds )wo hundred thousand pesos 4?#BB,BBB.BB7M S4-7 .n all actions involving the contract of marriage and marital relationsM S4"7 .n all cases not within the e&clusive jurisdiction of any court, tribunal, person or body e&ercising jurisdiction of any court, tribunal, person or body e&ercising judicial or 2uasi9judicial functionsM S477 .n all civil actions and special proceedings falling within the e&clusive original jurisdiction of a Fuvenile and 1omestic ,elations +ourt and of the +ourt of Agrarian ,elations as now provided by lawM and S467 .n all other cases in which the demand, e&clusive of interest, damages of whatever !ind, attorneyTs fees, litigation e&penses, and costs or the value of the property in controversy e&ceeds $ne hundred thousand pesos 4?1BB,BBB7 or, in such other cases in Metro Manila, where the demand, e&clusive of the abovementioned items e&ceeds )wo hundred thousand pesos 4?#BB,BBB7.S S8+. #. Section ;# of the same law is hereby amended to read as follows/ SS8+. ;#. Furisdiction of Metropolitan )rial +ourts, Municipal )rial +ourts and Municipal +ircuit )rial +ourts in +riminal +ases. 9 8&cept in cases falling within the e&clusive original jurisdiction of ,egional )rial +ourts and of the Sandiganbayan, the Metropolitan )rial +ourts, Municipal )rial +ourts, and Municipal +ircuit )rial +ourts shall e&ercise/ S417 8&clusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdictionM and S4#7 8&clusive original jurisdiction over all offenses punishable with imprisonment not e&ceeding si& 4"7 years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of !ind, nature, value or amount thereof/ ?rovided, however, )hat in offenses involving damage to property through criminal negligence, they shall have e&clusive original jurisdiction thereof.S

S8+. ;. Section ;; of the same law is hereby amended to read as follows/ SS8+. ;;. Furisdiction of Metropolitan )rial +ourts, Municipal )rial +ourts and Municipal +ircuit )rial +ourts in +ivil +ases. 9 Metropolitan )rial +ourts, Municipal )rial +ourts, and Municipal +ircuit )rial +ourts shall e&ercise/ S417 8&clusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of thepersonal property, estate, or amount of the demand does not e&ceed $ne hundred thousand pesos 4?1BB,BBB.BB7 or, in Metro Manila where such personal property, estate, or amount of the demand does not e&ceed )wo hundred thousand pesos 4?#BB,BBB.BB7, e&clusive of interest, damages of whatever !ind, attorneyTs fees, litigation e&penses, and costs, the amount of which must be specifically alleged/ ?rovided, )hat interest, damages of whatever !ind, attorneyTs fees, litigation e&penses, and costs shall be included in the determination of the filing fees/ ?rovided, further, )hat where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactionsM S4#7 8&clusive original jurisdiction over cases of forcible entry and unlawful detainer/ ?rovided, )hat when, in such cases, the defendant raises the 2uestion of ownership in his pleadings and the 2uestion of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possessionM and S4;7 8&clusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not e&ceed )wenty thousand pesos 4?#B,BBB.BB7 or, in civil actions in Metro Manila, where such assessed value does not e&ceed =ifty thousand pesos 4?-B,BBB.BB7 e&clusive of interest, damages of whatever !ind, attorneyTs fees, litigation e&penses and costs/ ?rovided, )hat in cases of land not declared for ta&ation purposes, the value of such property shall be determined by the assessed value of the adjacent lots.S S8+. . Section ; read as follows/ of the same law is hereby amended to

SS8+. ; . 1elegated Furisdiction in +adastral and *and ,egistration +ases. 9 Metropolitan )rial +ourts, Municipal )rial +ourts, and Municipal +ircuit )rial +ourts may be assigned by the Supreme +ourt to hear and determine cadastral or land registration cases covering lots where

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SUN TZU NOTES


there is no controversy or opposition, or contested lots where the value of which does not e&ceed $ne hundred thousand pesos 4?1BB,BBB.BB7, such value to be ascertained by the affidavit of the claimant or by agreement of the respective claimants if there are more than one, or from the corresponding ta& declaration of the real property. )heir decisions in these cases shall be appealable in the same manner as decisions of the ,egional )rial +ourts.S S8+. -. After five 4-7 years from the effectivity of this Act, the jurisdictional amounts mentioned in Sec. 194;7, 4 7, and 467M and Sec. ;;417 of 0atas ?ambansa 0lg. 1#9 as amended by this Act, shall be adjusted to )wo hundred thousand pesos 4?#BB,BBB.BB7. =ive 4-7 years thereafter, such jurisdictional amounts shall be adjusted further to )hree hundred thousand pesos 4?;BB,BBB.BB7/ ?rovided, however, )hat in the case of Metro Manila, the abovementioned jurisdictional amounts shall be 7. S8+. ". All laws, decrees, and orders inconsistent with the provisions of this Act shall be considered amended or modified accordingly. S8+. 7. )he provisions of this Act shall apply to all civil cases that have not yet reached the pretrial stage. @owever, by agreement of all the parties, civil cases cogni3able by municipal and metropolitan courts by the provisions of this Act may be transferred from the ,egional )rial +ourts to the latter. )he e&ecutive judge of the appropriate ,egional )rial +ourt shall define the administrative procedure of transferring the cases affected by the redefinition of jurisdiction to the Metropolitan )rial +ourts, Municipal )rial +ourts, and Municipal +ircuit )rial +ourts. RE3IONAL DIRECTOR ART. 12:. 4isitorial and enforce!ent o*er& G safety engineers made in the course of inspection. )he Secretary or his duly authori3ed representatives shall issue writs of e&ecution to the appropriate authority for the enforcement of their orders, e&cept in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues[ supported by documentary proofs which were not considered in the course of inspection. 4As amended by ,epublic Act (o. 77;B, Fune #, 199 7. K[ )he phrase after the word %issues', was an amendment by ,A 77;B to delete the clause %which cannot be resolved without considering evidentiary matters that are not verifiable in the normal course of inspection.'L An order issued by the duly authori3ed representative of the Secretary of *abor and 8mployment under this Article may be appealed to the latter. .n case said order involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Secretary of *abor and 8mployment in the amount e2uivalent to the monetary award in the order appealed from. 4As amended by ,epublic Act (o. 77;B, Fune #, 199 7. 4c7 )he Secretary of *abor and 8mployment may li!ewise order stoppage of wor! or suspension of operations of any unit or department of an establishment when non9compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of wor!ers in the wor!place. <ithin twenty9four hours, a hearing shall be conducted to determine whether an order for the stoppage of wor! or suspension of operations shall be lifted or not. .n case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of wor! or suspension of operation. 4d7 .t shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective the orders of the Secretary of *abor and 8mployment or his duly authori3ed representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article. 4e7 Any government employee found guilty of violation of, or abuse of authority, under this Article shall, after appropriate administrative investigation, be subject to summary dismissal from the service. 4f7 )he Secretary of *abor and 8mployment may, by appropriate regulations, re2uire employers to !eep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this +ode. )his Article is the nucleus of administrative enforcement of ?hilippine labor laws. (he job is lod4ed /ith the Secretary of Labor and Employment! the re4ional directors and other duly authori-ed representatives& )he enforcement function is broad. .t covers Sany fact, con9

4a7 )he Secretary of *abor and 8mployment or his duly authori3ed representatives, including labor regulation officers, shall have access to employerCs records and premises at any time of the day or night whenever wor! is being underta!en therein, and the right to copy therefrom, to 2uestion any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this +ode and of any labor law, wage order or rules and regulations issued pursuant thereto. 4b7 (otwithstanding the provisions of Articles 1#9 and #17 of this +ode to the contrary, and in cases where the relationship of employer9employee still e&ists, the Secretary of *abor and 8mployment or his duly authori3ed representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this +ode and other labor legislation based on the findings of labor employment and enforcement officers or industrial

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dition or matter which may be necessary to determine violations or which may aid in the enforcementS of the +ode and any labor law, wage order or regulations. *aw enforcement includes inspection of establishments, but every inspection should be supported by an authori3ation duly issued. <here violations are found, appropriate report will be submitted. Subse2uently, a Fcompliance orderS may issue which is a command to rectify the viola9 tion found and proven. )he issuance of a +ompliance $rder must observe the Scardinal primary re2uirementsS of due process in administrative proceedings. )he re2uirements are/ 417 )he alleged violator 4employer or anyone else7 must first be heard and given ade2uate opportunity to present evidence on his behalfM 4#7 )he evidence presented must be duly considered before any decision is reachedM 4;7 )he decision should be based on substantial evidence which means evidence ade2uate for a reasonable mind to support a conclusionM 4 7 the decision is based on evidence presented in the hearing, or at least con9 tained in the record and disclosed to the partiesM 4-7 )he decision is that of the decision9 ma!ing authority and not mere views of subordinatesM and 4"7 the decision should e&plain the issues involved and the reasons for the decision rendered. .t should be noted that the authority under Art. 1#6 may be e&ercised regardless of monetary value involved, unli!e in Art 1#9 which fi&es a ma&imum of ?-,BBB.BB per claimant. ,.A. (o. 77;B 4Fune #, 199 7 changed Art. 1#64b7 to its present wording so as to free it from the jurisdictional limitations found in Art. 1#9 and #17. .n the e&ercise of his power under this Article the Secretary of *abor and 8mployment may even order the stoppage of wor! or suspension of operations of the inspected establishment or parts of it. )he employer, if at fault, may be ordered to pay the employeesT wages during the wor! stoppage or suspension of operations. 0ut, again, due process of law must be observed. A regional director of 1$*8 has the power to order rectification of a labor standards violation even if such violation is not mentioned in the employeeTs complaint. 4See Aboiti- Shipping +orp. vs. 9e la Sema, etc.,>.,. (o. 66-;6, April 25! 199B.7 )he regional director, in cases where employer9 employee relationship still e&ists, has the power to order and administer, after due notice and hearing, compliance with the labor standards provisions of the *abor +ode and other legislation based on the findings of labor regulation officers or industrial safety engineers made in the course of inspection. @e may also issue writs of e&ecution to the appropriate authority for the enforcement of his orders in line with the provisions of Article 1#6 in relation to Article #69 and #9B of the *abor +ode. @owever, in those cases where the employer contests the findings of the labor standards and welfare officers and raises issues which cannot be resolved without considering evidentiary matters that are not verifiable in the normal course of inspection, the regional director must endorse the case to the appropriate arbitration branch 4labor9 arbiter7 of the (*,+ for adjudication )Sec& "! 'ule X! Aoo0 ! +mnibus 'ules mplementin4 the Labor Code*& )he visitorial enforcement power is thorough and piercingM it e&tends even to issues not formally included in the complaint.

LABOR ARBITER ART. 217. ;urisdiction of t'e <abor Arbiters and t'e Co!!ission. < 4a7 8&cept as otherwise provided under this +ode, the *abor Arbiters shall have original and e&clusive jurisdiction to hear and decide, within thirty 4;B7 calendar days after the submission of the case by the parties for decision without e&tension, even in the absence of stenographic notes, the following cases involving all wor!ers, whether agricultural or non9agricultural/ 1. Hnfair labor practice casesM #. )ermination disputesM ;. .f accompanied with a claim for reinstatement, those cases that wor!ers may file involving wages, rates of pay, hours of wor! and other terms and conditions of employmentM . +laims for actual, moral, e&emplary and other forms of damages arising from the employer9employee relationsM -. +ases arising from any violation of Article #" of this +ode, including 2uestions involving the legality of stri!es and loc!outsM and ". 8&cept claims for 8mployees +ompensation, Social Security, Medicare and maternity benefits, all other claims arising from employer9employee relations, including those of persons in domestic or household service, involving an amount e&ceeding five thousand pesos 4?-,BBB.BB7

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SUN TZU NOTES


regardless of whether accompanied with a claim for reinstatement. 4b7 )he +ommission shall have e&clusive appellate jurisdiction over all cases decided by *abor Arbiters. 4c7 +ases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the *abor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. )As amended by Section #! 'epublic Act 3o& 6$"5! 6arch 2"! "#8#*& )his Article enumerates the cases falling under Fori4inal and e?clusiveF jurisdiction of labor arbiters. )his gives the impression that none but a labor arbiter can hear and decide the si& categories of cases listed. 0ut this is not really so. Any or all of these cases can, by agreement of the parties, be presented to and decided with finality by a voluntary arbitrator or panel of voluntary arbitrators. 4See Articles #"1 and #"#.7 )he law prefers or gives primacy to voluntary arbitration 4Art. #117 instead of compulsory arbitration. And this, in turn, is the reason the law 4Art. #"1, last paragraph, and Art. #17 KcL7 forbids a labor arbiter from entertaining a dispute properly belonging to the jurisdiction of a voluntary arbitrator. )he cases a labor arbiter can hear and decide are employment9related. $ne unifying element runs through all the cases and disputes enumerated in Art. #17. )hat element is employment connection. 0ut, additionally, as regards money claims, the law applicable to grant the relief sought should li!ewise be considered. .f the principal relief sought will be resolved by applying the *abor +ode or other labor relations statute or a collective bargaining agreement, then the case belongs to the labor arbiter. 0ut if the applicable law is the general civil law, the jurisdiction over the dispute belongs to the regular courts, such as the regional trial court. 4See San Miguel +orf. vs. (*,+, >.,. (o. 6B77 , May ;1,1966.7

4a7 4b7

)here is a report on the non9compliance of the employer with the minimum wage law. Hpon receipt of the ,egional 1irector of this information, there will be an $,18, $= .(S?8+).$(. )he S$*8 or the ,egional 1irector. )he order of inspection will simply state that this person is authori3ed to conduct an inspection on this date, place and time.

4c7

)his inspection authority will then be implemented by a *abor and 8mployment $fficer of the 1$*8. And this person will visit the employerCs premises and then conduct an inspection. @e will inspect the payroll to determine if indeed there was underpayment of wages, inspect the employerCs premises, interview and as! the employees themselves if they are indeed paid such amount of wages, compare the payment records and confer with the employees. .f the inspector finds that there is a violation or underpayment of wages, he will ma!e an .(S?8+).$( ,8?$,) Hsually embodied in a ($).+8 $= .(S?8+).$( ,8SH*)S. All violations that the *abor 8mployment $fficer will find in the employerCs premises will be enumerated and be put as his findings in the notice.

4d7

4e7 4f7 4g7

)he employer is first informed of the results of the inspection. )he employer is given the opportunity to comply within 7 daysM or )he employer may contest the notice of inspection results and raise issues which cannot be resolved without considering 1$+HM8()A,A ?,$$=S that are not verifiable in the normal course of inspection. @$< S$$(J )he employer shall raise such objections during the hearing of the case or at any time after the receipt of the notice of inspection results.

4h7

VI. WAGE ENFORCEMENT AND RECOVERY


)<$ 8(=$,+8M8() )$$*S 1. #. A,).+*8 1#6. :.S.)$,.A* A(1 8(=$,+8M8() ?$<8, A,).+*8 1#9. ,8+$:8,A $= <A>8S, S.M?*8 M$(8A +*A.MS A(1 $)@8, 08(8=.)S. 4i7

.f on the other hand, the employer does not or fails to contest the notice of inspection result, as well as fails to comply with such notice. )he ,egional 1irector will issue an $,18, $= +$M?*.A(+8. )he order of compliance will basically be based on the notice of inspection results, so if the inspection says that you are underpaying 1B wor!ers or just paying them ?1BB, the ,1 will issue an order of compliance ordering this time the employer to pay the following wor!ers the following sums of money.

ENFORCEMENT PROCESS

,emedy of the employer from the order of compliance.

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SUN TZU NOTES


.f S$*8 personally conducts inspection, ,emedy to +A ,ule "-, then to S+ ,ule -.

)he order of compliance can be 2uestioned within 1B calendar days thru an A??8A* with S$*8 4filing of bond7 )hen the employer will file a motion for reconsideration with the ,1 within 7 calendar days. .f the employer files it beyond 7 days but not beyond 1B days, that will be considered an appeal from the ,1 to the S$*8.

4ISITORIAL AND ENFORCEMENT POWER Article 12:. 4isitorial and (nforce!ent &o*er4a7 )he Secretary of *abor or his duly authori3ed representatives, including #"*or re'@#"t!o o&&!cers, shall have "ccess to employerCs records and premises at any time of the day or night whenever wor! is being underta!en therein, and the r!'6t to co7+ therefrom, to G@est!o any employee and ! 5est!'"te any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this +ode and of any labor law, wage order or rules and regulations issued pursuant thereto.

4j7

.f the employer will not file a motion for reconsideration, what will happen to the order of complianceJ .t becomes final and e&ecutory. )he S$*8 or ,1 can issue a <,.) $= 8D8+H).$(, then it will levy. ?ursuant to ,ule ;9 in +ivil ?rocedure, the final judgment can be subject of e&ecution and the ,1 can levy on the properties of the employer to satisfy the judgment or the order of compliance. (ote/ that this is if there is no obedience to the order of compliance or there is no contesting done or no motion for reconsideration resorted to by the employer in that regard.

4!7

$n the other hand, if the employer validly contests by raising issues supported by documentary proofs which were not considered in the course of inspection 5 what will happenJ +an the ,1 still proceed with the caseJ ($. )he ,1 will endorse the case to the appropriate Arbitration 0ranch of the (*,+. <hyJ .t is no longer a summary proceeding. .t now becomes an adversarial proceeding which the ,1 is not e2uipped to handle. ,1 has no other recourse but to endorse it to the Arbitration 0ranch of the (*,+.

4b7 (otwithstanding the provisions of Articles 1#9 and #17 of this +ode to the contrary, and in cases where the relationship of employer9employee still e&ists, the Secretary of *abor and 8mployment or his duly authori3ed representatives shall have the 7o%er to !ss@e co)7#!" ce or$ers to give effect to the labor standards provisions of this +ode and other labor legislation *"se$ o t6e &! $! 's o& #"*or e)7#o+)e t " $ e &orce)e t o&&!cers or ! $@str!"# s"&et+ e '! eers made in the course of inspection. )he Secretary or his duly authori3ed representatives shall !ss@e %r!ts o& eJec@t!o to the appropriate authority for the enforcement of their orders, eJce7t in cases where the employer contests the findings of the labor employment and enforcement officer and raises the issues supported by documentary proofs which were ot considered in the course of inspection. L98D+8?).$( +*AHS8 An order issued by the duly authori3ed representative of the Secretary of *abor and 8mployment K,egional 1irectorL under this Article may be "77e"#e$ to the latter. .n case said order involves a )o et"r+ "%"r$, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the S$*8 in the amount e2uivalent to the monetary award in the order appealed from. 4c7 )he S$*8 may li!ewise order sto77"'e o& %orH or s@s7e s!o o& o7er"t!o s o& " + @ !t or $e7"rt)e t o& " est"*#!s6)e t when non9 compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of wor!ers in the wor!place. <ithin # hours, a 6e"r! ' shall be conducted to determine whether an order for stoppage of wor! or suspension of operations shall be lifted or not. .n case the violation is attributable to the employer, he shall pay the employees concerned their salaries or wages during

Note? .t is very important that you be able to contest the notice of inspection results within the time frame authori3ed by the ,H*8S $( 1.S?$S.).$( $= *A0$, S)A(1A,1S +AS8S. 0ecause if you fail or if you contest but the wrong way, or you fail to contest it at all, then the ,1 will have no recourse but to issue an order of compliance. And then your remedy therefore is no longer to contest but to a motion for reconsideration or probably an appeal to the S$*8. .n case you still fail to do that, then that order of compliance will become final and e&ecutory for which the S$*8 or the ,d for that matter is now authori3ed to issue a writ of e&ecution. )hen that is the end of the case. S$*8 4no appeal7, ,emedy to +A ,"-, then to S+ ,ule -.

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the period of such stoppage or wor! or suspension of operation. L9 +,$SS ,8=8, )$ A,).+*8 #6" $( +$(S8IH8(+8 $= SHS?8(S.$( $= $?8,A).$(S 4d7 .t shall be @ #"%&@# for any person or entity to obstruct, impede, delay or otherwise render ineffective the orders of the S$*8 or his duly authori3ed representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article. 4e7 A + 'o5er )e t e)7#o+ee found guilty of violation of, or abuse of authority, under this Article shall, after appropriate administrative investigation, be subject to s@))"r+ $!s)!ss"# from the service. 4f7 )he S$*8 may, by appropriate regulations, re2uire employers to !eep and maintain such e)7#o+)e t recor$s as may be necessary in aid of his visitorial and enforcement powers under this +ode. inspection, SA(S, any restriction with respect to the jurisdictional amount of -, BBB provided under A,) 1#9 and A,) #17. Q? 1oes the *abor +ode confer this :isitorial ?ower to be e&ercised by the ,egional 1irectorJ A? A8S. )he ,egional 1irector is the duly authori3ed representative of the S$*8. ENFORCEMENT POWER ON HEALTHFSAFET( OF WOR:ERS Article 12:. 4isitorial and enforce!ent o*er& 5

4c7 )he Secretary of *abor and 8mployment may li!ewise order stoppage of wor! or suspension of operations of any unit or department of an establishment when non9compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of wor!ers in the wor!place. <ithin twenty9four hours, a hearing shall be conducted to determine whether an order for the stoppage of wor! or suspension of operations shall be lifted or not. .n case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of wor! or suspension of operation. )his provision does not refer to violation of minimum wage laws. .t refers to the instance that when the non9 compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of wor!ers in the wor!place, the S$*8 can issue an order for the stoppage of wor! or the suspension of operations of any unit or department in an establishment.

S+$?8 $= )@8 :.S.)$,.A* ?$<8, $= )@8 S8+,8)A,A $= *A0$, Cirineo BoHling )laGa vs. R %2#17'$ "%&%2&'""1 erry Sensing

%)he visitorial and investigatory power under A,) 1#64a7 is broad enough to cover any fact, condition or matter related to the enforcement not only of the *abor +ode but of any labor law. Such power is li!ewise unlimited by the amount of monetary liability involved. )he liability, determined through appropriate proceedings, may be enforced through an order or writ of e&ecution regardless of the amount involved, according to A,) 1#6b as amended by ,A 77;B. ?ursuant to ,A 77;B, the jurisdictional limitations imposed by A,) 1#9 on the visitorial and enforcement powers of the ,1 under A,) 1#6, have been repealed. )he phrase %($)<.)@S)A(1.(> )@8 ?,$:.S.$(S $= A,).+*8S 1#9 A(1 #17 $= )@8 *+ )$ )@8 +$(),A,A,' erases all doubts as to the amendatory nature of ,A b77;B. )he amendment in effect overturned the rulings in the Aboiti- and Servandos cases in so far as the restrictive effect of A,) 1#9 on the use of the power under A,) 1#6 is concerned.' )he S$*8 or his duly authori3ed representative, in the e&ercise of their visitorial and enforcement powers, are now authori3ed to issue +$M?*.A(+8 $,18,S to give effect to the labor standards provisions of this +ode and other labor legislation based on the findings of the labor employment and enforcement officers or industrial safety engineers made in the course of

.**HS),A).$(/ <hen there is a lea! in a chemical plant, there is ha3ard to the employees. )he S$*8 can order suspension of operation. Q? .s the power of S$*8 to order suspension of operation similar to Article #6" on bona fide suspension of operationsJ A? ($. )hey are different. .n Article #6", it is the employer who suspends the operations while on the other hand, Article 1#6 spea!s of suspension by the Secretary of *abor. 8&ample, for causes attributable to the employer and in the interest of health and safety of the wor!ers, the ,egional 1irector orders the suspension of the companyCs operation. )he logical 2uestion there is 5 <hat is the conse2uence of thatJ <ill the employees be paid their wagesJ .n Article #6", for e&ample, if the employer decides to suspend his operations unilaterally, will the employees be entitled to their daily wagesJ <hat is being in2uired in Article 1#6 is whether or not the employer complies with labor standards laws, rules and regulations, as well as social legislations. )he power to visit the employerCs premises is so broad enough as to enable the S$*8 or his duly authori3ed representative to ma!e a finding after ma!ing such inspection. Since what will be involved would be in2uiring on violations of labor standard laws as well as wage orders, it would be

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important for us to !now the step9by9step procedure in the conduct of inspection under Article 1#6. And since what is involved would be labor standard provisions such as the minimum wages laws or rules 5 Is t6e e)7#o+er o*#!'e$ to )"! t"! " 7"+ro##E A8S. )he employer is obliged to maintain a payroll pursuant to the power of the S$*8 under Article 1#6 4f7 to issue such rules and regulations pertinent thereto. Hnder implementing rules, see Section ", ,ule D, 0oo! .... Q? .n the e&ercise of the visitorial power, can the S$*8 be interfered with by the courtsJ A? ($. )his is pursuant to Article 1#6 4d7. .f the S$*8 or the ,egional 1irector, for that matter, decides to inspect the employerCs premises, then no entity can lawfully interfere, obstruct or delay the e&ercise of that authorityM otherwise they would be penali3ed under that provision of the *+. )hat is how comprehensive and that is how strong the visitorial and enforcement power of the S$*8 is. 3-NA 5,)( SUSPENSION OF OPERATIONS ART. 2AB. 6'en e! lo$!ent not dee!ed ter!inated. 0 )he bona1fide suspension of the operation of a business or underta!ing for a period not e&ceeding si& 4"7 months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. .n all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his wor! not later than one 417 month from the resumption of operations of his employer or from his relief from the military or civic duty. Seb-g-ero$et al. vs. NLRC$ .T.I. S+ortsHear Cor+.$ et al .R. No. %%14(2$ Se+te:ber '7$ %((1 %Article #6; spea!s of a permanent retrenchment as opposed to a temporary lay9off. )here is no specific provision of law which treats of a temporary retrenchment or lay9off. )o remedy this situation or fill the hiatus, Article #6" may be applied but only by analogy to set a specific period that employees may remain temporarily laid9off or in floating status. Si& months is the period set by law that the operation of a business or underta!ing may be suspended thereby suspending the employment of the employees concerned. )he temporary lay9off wherein the employees li!ewise cease to wor! should also not last longer than si& months. After si& months, the employees should either be recalled to wor! or permanently retrenched following the re2uirements of the law. =ailing to comply with this would be tantamount to dismissing the employees and the employer would thus be liable for such dismissal. % Agro Co::er5ial Se5-rity Servi5es Agen5y$ In5. vs. National Labor Relations Co::ission .R. Nos. !'!'43'2$ =-ly 4%$ %(!( %<hen the Sfloating statusS of the employees lasts more than si& 4"7 months, they may be considered to have been constructively dismissed from the service. )hus, they are entitled to the corresponding benefits for their separation.' DISPOSITION OF LABOR STANDARD CASES A *abor Standard +ase is processed administratively under Articles 1#6 and 1#9 of the *+, as amended.

Maternity C*il6renKs Los+ital vs. Se5retary of Labor an6 Regional Dire5tor of Labor .R. No. 7!("($ =-ne 4"$ %(!( %Hnder the present rules, a ,egional 1irector e&ercises both visitorial and enforcement power over labor standard cases, and is, therefore, empowered to adjudicate money claims, provided there still e&ists an employer9employee relationship, and the findings of the regional office are not contested by the employer concerned.' ?ursuant to the provisions of Article -, in relation to Article 1#6KbL of the *abor +ode, the Secretary of *abor and 8mployment issued on September 1", 1967 the ,ules on the 1isposition of *abor Standards +ases in the ,egional $ffices to govern the enforcement of labor standards at the regional level. After the issuance of those ,ules, Article 1#6KbL was amended by ,epublic Act (o. 77;B on Fune #, 19 whose provisions are now reflected in the present Article 1#6.

Re5!se$ R@#es o D!s7os!t!o o& L"*or St" $"r$ C"ses .-A/ ser!es 00000000See FOO 7"'e 2.1 &or &@## teJt00000000 00000000See $!"'r") ! se7"r"te 7"'e00000000 De7"rt)e t Or$er No. /0A ser!es o& .--2 000000000000W" 7" H!t !Q00000000000000 DOLE Me)o C!rc@#"r No. ,20A ser!es o& .--2 0000000000000! sert 6ere000000000000000000000 APPEAL PROCEDURE An order issued under this Article is appealable to the 1$*8 secretary, the administrative superior of the regional director.

9niversity of I::a5-late Con5e+tion vs. SOLE R %24117$ =-ne '1$ '""2 %)he decision of the S$*8 becomes final and e&ecutory after ten 41B7 calendar days from receipt of the records of the case. A motion for reconsideration of the S$*8Cs decision has to be filed as a precondition for any further or subse2uent remedy. .f the motion is denied, a special civil action for certiorari under ,"- may be filed with the +A within "B days from receipt of the denial of the motion.' National ,e6eration of Labor vs. Lag-es:a R %'42'#$ Mar5* %"$ %(((

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Any decision or resolution of the ,egional 1irector or hearing officer pursuant to this provision may be appealed on the same grounds provided in Article ##; of this +ode, within five 4-7 calendar days from receipt of a copy of said decision or resolution, to the (ational *abor ,elations +ommission which shall resolve the appeal within ten 41B7 calendar days from the submission of the last pleading re2uired or allowed under its rules. )he Secretary of *abor and 8mployment or his duly authori3ed representative may supervise the payment of unpaid wages and other monetary claims and benefits, including legal interest, found owing to any employee or househelper under this +ode. 4As amended by Section #, ,epublic Act (o. "71-, March #1, 19697. )his is the second method of the enforcement and recovery of minimum wage provisions, which refers to simple money claims.

%=ollowing the rationale of St. Martin ruling, decisions of the Secretary of *abor, such as those in Articles 1#6, #;9, #-9, and #"; maybe elevated initially to the +A through certiorari.' ANTI0IN>UNCTION ART. 12:. 4isitorial and enforce!ent o*er. =

4d7 .t shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective the orders of the Secretary of *abor and 8mployment or his duly authori3ed representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article. MAINTENANCE OF EMPLO(MENT RECORDS ART. 12:. 4isitorial and enforce!ent o*er. =

ARTICLES .2A AND .2- COMPARED )he two articles are similar as they both spea! of labor law administration and enforcement Art. 1#9 is more limited in scope than Art. 1#6 Art 12? Adjudicatory power vested upon a ,egional 1irector or any duly %authori3ed hearing officer' of 1$*8. ,efers to adjudication through summary proceedings after notice and hearing, of employeesC claims for wages and benefits .nitiated by sworn complaints filed by any interested party.

4f7 )he Secretary of *abor and 8mployment may, by appropriate regulations, re2uire employers to !eep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this +ode. SIMPLE MONE( CLAIMS AND >URISDICTION ART. .2-. Recover$ of *ages> si! le !one$ clai!s and ot'er benefits. 0 Hpon complaint of any interested party, the ,egional 1irector of the 1epartment of *abor and 8mployment or any of the duly authori3ed hearing officers of the 1epartment is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this +ode, arising from employer9employee relations/ ?rovided, )hat such complaint does not include a claim for reinstatement/ ?rovided further, )hat the aggregate money claims of each employee or househelper does not e&ceed =ive thousand pesos 4?-,BBB.BB7. )he ,egional 1irector or hearing officer shall decide or resolve the complaint within thirty 4;B7 calendar days from the date of the filing of the same. Any sum thus recovered on behalf of any employee or househelper pursuant to this Article shall be held in a special deposit account by, and shall be paid on order of, the Secretary of *abor and 8mployment or the ,egional 1irector directly to the employee or househelper concerned. Any such sum not paid to the employee or househelper because he cannot be located after diligent and reasonable effort to locate him within a period of three 4;7 years, shall be held as a special fund of the 1epartment of *abor and 8mployment to be used e&clusively for the amelioration and benefit of wor!ers.

Art 12: empowers the Secretary of *abor or any of his Sduly authori3ed representatives' who may or may not be a ,1. Spea!s of inspection of establishments and the issuance of compliance orders on labor standards, wage orders and other labor laws and regulations ?roceedings under this article are offshoots of inspections done by labor officers or safety engineers Furisdictional limits in Art 1#9 do not apply to the e&ercise of powers under Art 1#6. ?ar 0 of Art 1#6 was changed to its present wording by ,A 77;B purposely to strengthen the visitorial enforcement power by freeing it from the limitations of Art 1#9. A decision under Article 1#6, on the other hand, is administrative and therefore appealable to the Secretary of *abor who is the administrative superior of all regional directors of the

)he regional directorTs authority under Art. 1#9 is subject to four ,e2uisites.

A decision rendered under this Article, being adjudicatory in nature, is appealable to the (ational *abor ,elations +ommission 4(*,+7

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1epartment. e. After receiving the answer, the ,egional 1irector calls for a summary hearing and decides on the matter within ;B calendar days from the date of filing of the complaint. .f the decision is adverse, the employer may appeal the decision to the (*,+ within - calendar days from the receipt of the copy of said decision or resolution. )he appeal must conform to the re2uirements provided for under Article #17 and the (*,+ ,ules. )o perfect the appeal, the employer must post a cash or surety bond. .n the appeal from the ,1 decision to the (*,+, the aggrieved party has - calendar days, while in the appeal from *A decision to the (*,+, the aggrieved party has 1B days. =rom the adverse decision of the (*,+, the employer can then file a motion for reconsideration. .f said motion is denied, the employer may still file a Special +ivil Action for +ertiorari with the +ourt of Appeals under ,ule "- of the ,ules of +ourt within a period of "B days from receipt of the decision. )he ,egional )ripartite <ages and ?roductivity 0oard 4,)<?07 do not have the power to promulgate rules providing who is e&empted from minimum wage. .t is the (ational <ages and ?roductivity 0oard 4(<?+7 that has the rule9ma!ing power to promulgate rules on e&emption and minimum wage fi&ing, and not the ,)<?0.

)@8 ,8>.$(A* 1.,8+)$,TS AH)@$,.)A H(18, A,). 1#9 .S SH0F8+) )$ =$H, ,8IH.S.)8S, (AM8*A/ 1. )he claim is presented by an employee or a person employed in domestic or household service, or a househelper. #. )he claim arises from employer9employee relations. ;. )he claimant does not see! reinstatement. . )he "''re'"te money claim of each employee or househelper does not e&ceed ?-,BBB.BB. .f there is 2uestion of reinstatement or if the claimantTs demand e&ceeds ?-,BBB.BB, the labor arbiter has jurisdiction over the case, pursuant to Art. #17, paragraph ", e&cept claims for employeesT compensation, social security, Medicare 4?hilhealth7 and maternity benefits. 8ven as regards labor arbiter, however, employer9employee relation is a prere2uisite as basis of the claim. Articles 1#6 and 1#9 are operative only in the conte&t of employment relationship. A regular court , not 1$*8 or (*,+, has jurisdiction over claim of an independent contractor to adjust contractual fee.

f.

g. h.

Art 217. ;urisdiction of t'e <abor Arbiters and t'e Co!!ission. < Already discussed under )opic - :iolation of <age $rders

9rbanes vs. SOLE R %''7(% "'&%(&'""4 %.t is well settled in law and jurisprudence that where no employer9employee relationship e&ists between the parties and no issue is involved which may be resolved by reference to the *abor +ode, other labor statutes or any collective bargaining agreement, it is the ,egional )rial +ourt that has jurisdiction. <hile the application +ode was S$*.1A,A respondent e&ists.' resolution of the issue involves the of labor laws, reference to the *abor only for the determination of the *.A0.*.)A of the petitioner to the where no employer9employee relation

COMPROMISE OF LABOR STANDARD CASES ART. 227. Co! ro!ise agree!ents. - Any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the 0ureau or the regional office of the 1epartment of *abor, shall be final and binding upon the parties. )he (ational *abor ,elations +ommission or any court, shall not assume jurisdiction over issues involved therein e&cept in case of non9 compliance thereof or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation, or coercion. 1ispute resolution through compromise is a pervading philosophy of ?hilippine labor laws. )his is emphasi3ed in this Article ##7 and it conforms with the statement of basic policy in Art. #11 4a7 and the second paragraph of Art. ##1. )he law loo!s with disfavor upon 2uitclaims and releases by employees who are inveigled or pressured into signing them by unscrupulous employers see!ing to evade their legal responsibilities. $n the other hand, there are legitimate waivers that represent a voluntary settlement of a laborerTs claims that should be respected by the courts as the law between the parties. (ot all waivers and 2uitclaims are invalid as against public policy. .f the agreement was voluntarily entered into and

?,$+81H,8 H(18, A,).+*8 1#9 a. b. c. )he employee files a pro9forma complaint with the ,egional 1irector. )he ,egional 1irector doc!ets the complaint as simple money claim. )he ,egional 1irector issues summons served upon employer 4respondent7, together with the copy of the compliant, and sends a copy of the same to the respondent. )he employer9respondent is given - calendar days to answer the complaint. )he employer can either admit the allegations or deny it.

d.

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represents a reasonable settlement, it is binding on the parties and may not later be disowned simply because of a change of mind. A judgment rendered in accordance with a compromise agreement is not appealable and is immediately e&ecutory, unless a motion is filed to set aside the agreement on the ground of fraud, mista!e, or duress, in which case an appeal may be ta!en against the order denying the motion. )6aster (ours and (ravel Corp& vs& +A, #19 S+,A ;#1M 7nited @ousin4 Corp& vs& 9ayrit! "8" S+,A #6-.7 A compromise agreement by union officers must be authori3ed by the union members. )he authority must be produced in evidence. 8ach laborer must authori3e the union officers to enter into a compromise before the laborerTs right may be affected. )<aisahan n4 m4a Manggagawa sa La Campana vs& Sarmiento! 1;; S+,A ##B K196 L.7 See further discussion under Art. # #. to wor! under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. )he posting of a bond by the employer shall not stay the e&ecution for reinstatement provided herein. )o discourage frivolous or dilatory appeals, the +ommission or the *abor Arbiter shall impose reasonable penalty, including fines or censures, upon the erring parties. .n all cases, the appellant shall furnish a copy of the memorandum of appeal to the other party who shall file an answer not later than ten 41B7 calendar days from receipt thereof. )he +ommission shall decide all cases within twenty 4#B7 calendar days from receipt of the answer of the appellee. )he decision of the +ommission shall be final and e&ecutory after ten 41B7 calendar days from receipt thereof by the parties. Any law enforcement agency may be deputi3ed by the Secretary of *abor and 8mployment or the +ommission in the enforcement of decisions, awards or orders. 4As amended by Section 1#, ,epublic Act (o. "71-, March #1, 19697. A77e"# means the elevation by an aggrieved party of any decision, order or award of a lower body to a higher body, by means of a pleading which includes the assignment of errors, arguments in support thereof, and the reliefs prated for. A. mere notice of appeal, therefore, does not constitute the appeal as herein defined and understood, and shall not stop the running of the period for perfecting an appeal. 4.mplementing ,ules, 0oo! :, ,ule ., Sec. 17 8Per&ect!o o& " A77e"#P includes the filing, within the prescribed period, of the memorandum of appeal containing, among others, the assignment of errorEs, arguments in support thereof, the relief sought and, in appropriate cases, posting of an appeal bond.

Art 202: NCC. A compromise is a contract where the parties, by ma!ing reciprocal concessions, avoid a litigation or put an end to one already commenced. APPEAL PROCEDURE ART. 223. A eal. - 1ecisions, awards, or orders of the *abor Arbiter are final and e&ecutory unless appealed to the +ommission by any or both parties within ten 41B7 calendar days from receipt of such decisions, awards, or orders. Such appeal may be entertained only on any of the following grounds/ 4a7 .f there is prima facie evidence of abuse of discretion on the part of the *abor ArbiterM 4b7 .f the decision, order or award was secured through fraud or coercion, including graft and corruptionM 4c7 .f made purely on 2uestions of lawM and 4d7 .f serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant. .n case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the +ommission in the amount e2uivalent to the monetary award in the judgment appealed from. .n any event, the decision of the *abor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be e&ecutory, even pending appeal. )he employee shall either be admitted bac!

SM Agri an6 eneral Ma5*ineries vs. NLRC .R. No. 72!("#$ =an-ary ($ %(!(. %)he 1B9day period provided in Article ##; refers to ten calendar days, not wor!ing days. )his means that Saturdays, Sundays and *egal @olidays are not to be e&cluded, but included, in counting the 1B9day period. <here the 1Bth day is a Sunday or *egal @oliday, the appeal can be filed on the ne&t business day. % AC-ino vs. NLRC an6 RobFtt In6-strial Constr-5tion$ In5.$ .R. No. (!%"%$ Se+te:ber 4$ %((4. %.f the tenth day to perfect an appeal from the decision of the *abor Arbiter to the (*,+ falls on a Saturday, the appeal shall be made on the ne&t wor!ing day. % Star Angel Lan6i5raft vs. NLRC an6 S+o-ses ,ribaMas$ No. %"!(%2$ Se+te:ber '"$ %((2. .R.

%)here is a clear distinction between the filing of an appeal within the reglementary period and its perfection. )he appeal

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from the *abor Arbiter to the +ommission must be filed within the reglementary period.' C.W. Tan Mfg. vs. NLRC .R. No. 7(1(#$ ,ebr-ary %"$ %(!(. %)he payment of the appeal fee is by no means a mere technicality but is an essential re2uirement in the perfection of an appeal. @owever, where the fee had been paid belatedly, the broader interest of justice and the desired objective in deciding the case on the merits demand that the appeal be given due course. % ,ules of technicality must yield to the broader interests of substantial justice. )he dismissal of an appeal on purely technical grounds is frowned upon. 4Modem =ishing ,ear Labor Hnion vs. (*,+, >.,. (o. -;9B7, 6a1y 6! 1966.7 ISSUES ON APPEAL= REMEDIES Ro5*e )*ili++ines vs. NLRC .R. No. !4441$ O5tober 1$ %(!( %Hnder Section - 4c7 of the ,ules of ?rocedure of the (ational *abor ,elations +ommission, the +ommission shall, in cases of perfected appeals, limit itself to reviewing those issues which are raised on appeal. )hose which are not raised shall be final and e&ecutory. )he issues raised on appeal, however, shall be open for review and any actions ta!en thereon by the +ommission are within the parameters of its jurisdiction. % So6ol vs. ,ili+inos 8oo$ In5.$ ReC-ito Vega$ Belen o:eG$ Art-ro o:eG$ NLRC$ .R. No. !714"$ =-ne %4$ %((". %A party who failed to appeal on time from the decision of *abor Arbiter may still file a motion for reconsideration of the (*,+ decision. )he decision of the +ommission shall be final and e&ecutory after ten calendar days from receipt by the parties.' )-re ,oo6s Cor+oration vs. NLRC .R. No. 7!1(%$ Mar5* '%$%(!(. %)he losing party, however, is not without recourse. Hnder the (ew ,ules of the (ational *abor ,elations +ommission, a party is allowed to file a motion for reconsideration of any order, resolution or decision of the +ommission based on palpable or patent errors, provided that the motion is under oath and filed within ten 41B7 calendar days from receipt of the order, resolution or decision. .n addition, the party may also seasonably avail of the special civil action for certiorari under 'ule 65 of the 'ules of Court . )he action is allowed if the tribunal, board or officer e&ercising judicial functions has acted without or in e&cess of its jurisdiction, or with grave abuse of discretion.'

WHEN AND WHERE TO FILE PETITION Hnder the 1997 ,ules of +ivil ?rocedure, effective Fuly 1, 1997, the petition for certiorari may be filed not later than si&ty 4"B7 days from notice of the judgment, order of resolution sought to be assailed in the Supreme +ourt & & &. .t may also be filed in the +ourt of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. 4Sec. , ,ule "-, ,ules of +ourt.7 0ut the same Section and ,ule provide that Sif Kthe petitionL involves the acts or omissions of a 2uasi9judicial agency, and unless otherwise provided by law or KtheL ,ules, the petition shall be filed and cogni3able only by the +ourt of Appeals.S St. Martin ,-neral Lo:es vs. NLRC .R. No. %4"!##$ Se+te:ber %#$ %((!. ?,.(+.?*8 $= @.8,A,+@A $= +$H,)S Solidly buttressing the +ATs jurisdiction is the Supreme +ourt ruling in the St. 6artin case. After a discreet analysis of the legislative intent in delineating judicial jurisdictions, the +ourt 4through Mr. Fustice ,egalado7 declared that/ %0oth the Supreme +ourt and the +ourt of Appeals have the power to review (*,+ decisions. @owever, the petition by certiorari should initially be filed with the +ourt of Appeals, in line with the principle of hierarchy of courts.' National ,e6eration of Labor AN,LB vs. Lag-es:a$ %'42'#$ Mar5* %"$ %((( .R. No.

%)he Supreme +ourt held that challenges against rulings of the labor secretary and those acting on his behalf, li!e the director of labor relations, shall be acted upon by the +ourt of Appeals, which has concurrent jurisdiction with the Supreme +ourt over petitions for certiorari.' FINALIT( ON FINDIN3S OF FACTS Manila Man6arin E:+loyees 9nion vs. NLRC .R. No. 7#(!($ Se+te:ber '%$ %(!7. %Iuasi9judicial agencies li!e the (ational *abor ,elations +ommission have ac2uired e&pertise because their jurisdiction is confined to specific matters. @ence, their findings of facts are generally accorded not only respect but at times even finality if such findings are supported by substantial evidence. % EXCEPTIONS In6-strial Ti:ber Cor+. vs. NLRC$ Con5or6ia Dos )-eblos$ et al.$ .R. No. !4#%#$ =an-ary '"$ %(!(. %@owever, the Supreme +ourt has never hesitated to e&ercise its corrective powers and to reverse administrative decisions in the following cases/ 417 the conclusion is a finding grounded on speculations, sur9 mises and conjecturesM

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4#7 the inferences made are manifestly mista!en, absurd or impossibleM 4;7 there is a grave abuse of discretionM 4 7 there is a misapprehension of factsM 4-7 the court Kor 2uasi9judicial bodyL in arriving at its findings went beyond the issues of the case and the same are contrary to the admissions of the parties or the evidence presentedM 4"7 where respondent commission has sustained irregular procedures and through the invocation of summary methods, including rules on appeal, has affirmed an order which tolerates a violation of due processM and 477 where the rights of a party were prejudiced because the administrative findings, conclusions or decisions were in violation of constitutional provisions, in e&cess of statutory authority, or jurisdiction, made upon irregular procedure, vitiated by fraud, imposition or mista!e, not supported by substantial evidence adduced at the hearing or contained in the records or disclosed to the parties, or arbitrary, or capricious.' LE3AL REMEDIES S7ec!"# C!5!# Act!o Proce$@reD See )opic CR@#e B2, .--/ R@#es o& C!5!# person, agent or officer, of any association or corporation who shall force or compel, directly or indirectly, or shall !nowingly permit any laborer or employee employed by him or by such firm or corporation to be forced or compelled, to purchase merchandise or commodities of any !ind. )he same penalties shall be imposed upon any person who shall pay the wages due a laborer or employee employed by him, by means of to!ens or objects other than the legal tender currency of the laborer or employee. WA3E DEDUCTION ART. 113. 6age deduction. - (o employer, in his own behalf or in behalf of any person, shall ma!e any deduction from the wages of his employees, e&cept/ 4a7 .n cases where the wor!er is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insuranceM 4b7 =or union dues, in cases where the right of the wor!er or his union to chec!9off has been recogni3ed by the employer or authori3ed in writing by the individual wor!er concernedM and 4c7 .n cases where the employer is authori3ed by law or regulations issued by the Secretary of *abor and 8mployment. ART. 114. )e osits for loss or da!age. - (o employer shall re2uire his wor!er to ma!e deposits from which deductions shall be made for the reimbursement of loss of or damage to tools, materials, or e2uipment supplied by the employer, e&cept when the employer is engaged in such trades, occupations or business where the practice of ma!ing deductions or re2uiring deposits is a recogni3ed one, or is necessary or desirable as determined by the Secretary of *abor and 8mployment in appropriate rules and regulations. NON0INTERFERENCE IN DISPOSAL OF WA3ES ART. 112. Non-interference in dis osal of *ages. - (o employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. @e shall not in any manner force, compel, or oblige his employees to purchase merchandise, commodities or other property from any other person, or otherwise ma!e use of any store or services of such employer or any other person. ART. 2AA RE4ISED PENAL CODE Art. 2:: R&C. -t'er "i!ilar Coercions9 1Co! ulsor$ urc'ase of !erc'andise and a$!ent of *ages b$ !eans of to+ens.2 0 )he penalty of arresto mayor or a fine ranging from #BB to -BB pesos, or both, shall be imposed upon any refer to =ive F )a&i and Fardin +ases

Pet!t!o &or Re5!e% CR@#e 41 " $ R@#e 42, .--/ R@#es o& C!5!# Proce$@reD See topic

VII. WAGE PROTECTION PROVISIONS AND PROHIBITIONS REGARDING WAGES

DEPOSITS FOR LOSSFDAMA3E ART. 115. <i!itations. - (o 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. WITHHOLDIN3F:IC:BAC:S ART. 11@. 6it''olding of *ages and +ic+bac+s ro'ibited. - .t shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a wor!er or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the wor!erCs consent.

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has become part of the employment contract, written or unwritten. )@8 ,H*8 A>A.(S) 1.M.(H).$( $= SH??*8M8()S $, 08(8=.)S .S A??*.+A0*8 .= .) .S S@$<( )@A)/ 1. )he grant of the benefit is based on an e&press policy or has ripened into a practice over a long period of timeM #. )he practice is consistent and deliberate. ;. )he practice is not due to error in the construction or application of a doubtful or difficult 2uestion of law. . )he diminution or discontinuance isdone unilaterally by the employer. ART. 127. Non-di!inution of benefits. - (o wage order issued by any regional board shall provide for wage rates lower than the statutory minimum wage rates prescribed by +ongress. 4As amended by ,epublic Act (o. "7#7, Fune 9, 19697. 000Re"$ Se5!##", D"5"o Fr@!ts " $ Ho $" c"se

DEDUCTION TO ENSURE EMPLO(MENT ART. 117. )eduction to ensure e! lo$!ent. - .t shall be unlawful to ma!e any deduction from the wages of any employee for the benefit of the employer or his representative or intermediary as consideration of a promise of employment or retention in employment. RETALIATOR( MEASURES ART. 11:. Retaliator$ !easures. - .t shall be unlawful for an employer to refuse to pay or reduce the wages and benefits, discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding under this )itle or has testified or is about to testify in such proceedings. FALSE REPORTIN3 ART. 11?. 5alse re orting. - .t shall be unlawful for any person to ma!e any statement, report, or record filed or !ept pursuant to the provisions of this +ode !nowing such statement, report or record to be false in any material respect. WITHHOLDIN3 OF WA3ES NEW CI4IL CODE ART. 170@. <ithholding of the wages, e&cept for a debt due, shall not be made by the employer. ART. 1707. )he laborerCs wages shall be a lien on the goods manufactured or the wor! done. ART. 170:. )he laborerCs wages shall not be subject to e&ecution or attachment, e&cept for debts incurred for food, shelter, clothing and medical attendance. ART. 170?. )he employer shall neither sei3e nor retain any tool or other articles belonging to the laborer. PRINCIPLE OF NON0DIMINUTION OF BENEFITS ART. 100. &ro'ibition against eli!ination or di!inution of benefits. - (othing in this 0oo! shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of this +ode. it essentially means that benefits being given to employees cannot be ta!en bac! or reduced unilaterally by the employer because the benefit

VIII. PAYMENT OF WAGES


0000Re"$ M"*eI" " $ M!##"res c"se000000 FORM ART. .,2. 5or!s of a$!ent. 0 (o employer shall pay the wages of an employee by means of promissory notes, vouchers, coupons, to!ens, tic!ets, chits, or any object other than legal tender, even when e&pressly re2uested by the employee. ?ayment of wages by chec! or money order shall be allowed when such manner of payment is customary on the date of effectivity of this +ode, or is necessary because of special circumstances as specified in appropriate regulations to be issued by the Secretary of *abor and 8mployment or as stipulated in a collective bargaining agreement. )he wages will have to be paid in the form of legal lender.

*8>A* )8(18, .s that currency which has been made suitable by law for the purpose of a tender of payment of debts. All notes and coins issued by the +entral 0an! are legal tender. considered

Q? )he payment of wages in the form of cash legal tenderJ A? A8S.

Q? +an the employer pay the employee partly in cash and partly in !indJ A? >enerally ($. )here are cases decided by the Supreme +ourt wherein such is allowed, such as payment for facilities. Q? +an the employer pay the employee in the form

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SUN TZU NOTES


other than cashJ A? A8S, through money order or chec!. )his is by way of e&ception, the rules allow the employer to pay employeesC wages in these forms. (ote the instances. Note? ?ayment of wages by ban! chec!s, postal chec!s or money order is allowed/ NEW CI4IL CODE ART. 1705. )he laborerCs wages shall be paid in legal currency. RE4ISED PENAL CODE Art. 2:: R&C. -t'er "i!ilar Coercions9 1Co! ulsor$ urc'ase of !erc'andise and a$!ent of *ages b$ !eans of to+ens.2 0 )he penalty of arresto mayor or a fine ranging from #BB to -BB pesos, or both, shall be imposed upon any person, agent or officer, of any association or corporation who shall force or compel, directly or indirectly, or shall !nowingly permit any laborer or employee employed by him or by such firm or corporation to be forced or compelled, to purchase merchandise or commodities of any !ind. )he same penalties shall be imposed upon any person who shall pay the wages due a laborer or employee employed by him, by means of to!ens or objects other than the legal tender currency of the laborer or employee. EXCEPTION R@#e 4III, BooH III, Sec 2 "ec. 2. &a$!ent b$ c'ec+.-?ayment of wages by ban! chec!s, postal chec!s or money orders is allowed/ 1. #. ;. <here such manner of wage payment is customary on the date of effectivity of the +ode 4(ovember 1, 197 7M or <here it is stipulated in a collective agreementM or <here all the following conditions are met/ a. )here is a ban! or other facility for encashment within a radius of 1 !ilometer from the wor!placeM )he employer, or any of his agents or representatives, does not receive any pecuniary benefit directly or indirectly from the arrangementM d. )he payment by chec! is with the /ritten consent of the employees concerned if there is no collective agreement authori3ed the payment of wages by ban! chec!s.

.f all of these conditions are met, the employer can validly, by himself, pay wages by chec!s. (ote the differences of the instances in the rules that allow payment by chec! and place of payment, because that it usually the mista!e of students when they interchange the instances and of course, these being different, they will end up wrong. (ote that the employer should not enter into an arrangement with the ban! that the employer will receive commission if the employer pays in the form of chec!. )here should be no pecuniary benefit from this arrangement of payment through chec!.

PLACE ART. 104. &lace of a$!ent. - ?ayment of wages shall be made at or near the place of underta!ing, e&cept as otherwise provided by such regulations as the Secretary of *abor and 8mployment may prescribe under conditions to ensure greater protection of wages. Q? .s there an instance when the employer may be allowed to pay the employeesC wage other than at the place of underta!ingJ A? Aes. EXCEPTIONS A. R@#e 4III, BooH III, Sec 4 "ection 4. &lace of &a$!ent.4a7 As a general rule, the place of payment shall be at or near the place of underta!ing. ?ayment in a place other than the wor!place shall be permissible only under the following circumstances/ 1. <hen payment cannot be effected at or near the place of wor! by reason of the deterioration of peace and order conditions, or by reason of actual or impending emergencies caused by fire, flood, epidemic or other calamity rendering payment thereat impossibleM <hen the employer provides for transportation to the employees bac0 and forthM and Hnder any other analogous circumstancesM provided that the time spent by the employees in collecting their wages shall be considered as compensable hours wor!ed.

#. ;.

b.

c.)he employees are given reasonable time during ban!ing hours to withdraw their wages from the ban! which time shall be considered compensable hours /or0ed if done during wor!ing hoursM and

4b7 (o employer shall pay his employees in any bar, night or day club, drin!ing establishment, massage clinic, dance hall, or other similar places or in places where games are played with sta!es of money or things representing money e?cept in the case of persons employed in said places. ?ayment in recreational places prohibited/

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B. RA B/2/ THRU BAN:S "ec. 7. Hpon written petition of the majority of the employees or wor!ers concerned, all private establishments, companies, businesses, and other entities with twenty9five 4#-7 or more employees and located within one 417 !ilometer radius to a commercial, savings or rural ban! shall pay the wages and other benefits of their employees through any of said ban!s and within the period for payment of wages fi&ed by ?residential 1ecree (o. #, as amended, otherwise !nown as the *abor +ode of the ?hilippines. Q? .s the employer allowed by e&isting rules and regulations to pay the employeesC wage through the facility of the A)MJ A? A8S, note the conditions K,A "7#7 Sec 7L Q? <hen we say A)M, is that same as the payment of wages through the ban!sJ A? )hat may, or may not be different. )here is an A)M in a ban!, but an A)M is not always located in a ban!. Q? .s it possible to pay the employeeCs wage through the facilities in a ban!J A? A8S, note the conditions K,A "7#7 Sec 7L ?AAM8() $= <A>8S )@,$H>@ 0A(NS .( +AS@, A** $= )@8S8 MHS) +$(+H, "ection 7> RA @727 417 Hpon written permission of the majority of the employees or wor!ers concernedM 4#7 All private establishments, companies, businesses, and other entities with at least #- or more employeesM and 4;7 *ocated within 1 !ilometer radius to a commercial, savings, or rural ban!s shall pay wages or benefits of their employees through any of said ban!sM 4 7 <ithin the period of payment of wages fi&ed by ?1 #, the *abor +ode, as amended. <ages shall be paid at least once every two 4#7 wee!s or twice a month at intervals not e&ceeding si&teen 41"7 days Kart 1B; L through A)Ms of ban!s, C+39 ( +3S are metC provided that the follo/in4

417 )he A)M system of payment is with the written consent of the employees concerned. 4#7 )he employees are given reasonable time to withdraw their wages from the ban! facilities which time, if done during wor!ing hours, shall be considered as compensable hours wor!ed. 4;7 )he system shall allow wor!ers to receive their wages within the period or fre2uency and in the amount prescribed under the *abor +ode. 4 7 )here is a ban0 or A(6 facility within a radius of 1 !ilometer to the place of wor!. 4-7 Hpon re2uest of the concerned employeeEs, the employer shall issue a record of payment of wages, benefits and deductions for a particular period. 4"7 )here shall be no additional e&penses and no diminution of benefits and privileges as a result of the A)M system of payment. 477 )he employer shall assume responsibility in case the wage protection provisions of law and regulations are not complied with under the arrangement. )he point here is that, if the employer elects to pay the employeeCs wage through the A)M, there should be no diminution of the employees wage. )he employees can also demand from the employer, proof of how much they are paid including the itemi3ed deduction. .n other words, it will not dispense with the re2uirement of the pay slip. ,emember, that the employers decide on their own without the employeesC consent to pay their wages through the A)M facilities. 8vidently in violation or non9 conformity with the guidelines issued by the 1$*8. .f that happens, then the remedy of the employees would be to report it to the 1$*8 for an inspection and for the correction of that particular system. )he 1$*8, in the e&ercise of its visitorial and enforcement power can order the employer to correct any deficiency in that !ind of practice.

PA(EE ART. .,2. )irect a$!ent of *ages. 0 <ages shall be paid directly to the wor!ers to whom they are due, e?ceptC 4a7 .n cases of force majeure rendering such payment impossible or under other special circumstances to be determined by the Secretary of *abor and 8mployment in appropriate regulations, in which case, the wor!er may be paid through another person under written authority given by the wor!er for the purposeM or 4b7 <here the wor!er has died, in which case, the employer may pay the wages of the deceased wor!er to the heirs of the latter without the necessity of intestate proceedings. )he claimants, if they are all of age, shall e&ecute an affidavit attesting to their relationship to the deceased and the fact that they are his heirs, to the e&clusion of all other persons. .f any of the heirs is a minor, the affidavit shall be e&ecuted on his behalf by his natural guardian or ne&t9of9!in. )he affidavit shall be presented to the employer who shall ma!e payment through the Secretary of *abor and 8mployment or his representative. )he representative of the Secretary of *abor and 8mployment shall act as referee in dividing the amount

LABOR AD4ISOR( ON PA(MENT OF SALARIES THROU3H AUTOMATED TELLER MACHINE CATMD K.ssued by then Secretary *eonardo IuisumbingL Article 1B , as amended, re2uires that payment of wages shall be made at or near the place of underta!ing, e?cept as otherwise provided by such regulations as the Secretary of *abor may prescribe under conditions that would ensure prompt payment and protection of wages. 0ased on Article 1B , as well as the provisions of Section , ,ule :..., 0oo! ... and considering present9day circumstances, practices and technology, employers may adopt a system of payment other than in the wor!place, such as

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SUN TZU NOTES


paid among the heirs. )he payment of wages under this Article shall absolve the employer of any further liability with respect to the amount paid. )$ <@$M S@$H*1 )@8 <A>8 08 ?A.1J Article "%5 provides that wages should be paid directly to the employees. )his is because it is the wor!er who earns that money and it should be paid directly to him and not to his girlfriend, not to his lola, or whoever. $therwise, it is not a valid payment. As learned in +ivil *aw, payment or performance is a mode of e&tinguishing an obligation. And if there is an improper payment or performance, it will not e&tinguish your obligation. )hat is how important this rule is. EXCEPTIONS .S .) ?$SS.0*8 )$ ?AA )@8 <A>8 )$ $)@8, )@A( )@8 8M?*$A88 @.MS8*=J A8S, note the circumstances provided in Article1B-/ 4a7 .n cases of force majeure rendering such payment impossibleM or 4b7 Hnder special circumstances to be determined by the S$*8 in appropriate regulationsM or 4c7 <here the wor!er has died. R@#e 4III, BooH III, Sec 2 "ec. 5. &a$!ent of *ages.- ?ayment of wages shall be made direct to the employee entitled thereto e&cept in the following cases/ 4a7 <here the employer is authori3ed in writing by the employee to pay his wages to a member of his familyM 4b7 <here payment to another person of any part of the employeeCs wages is authori3ed by e&isting law, including payments for the insurance premiums of the employee and union dues where the ri4ht to chec01off has been recogni3ed by the employer in accordance with a collective agreement or authori3ed in writing by the individual employees concernedM or 4c7 .n case of death of the employee as provided to the succeeding section. .n cases of payment of deceased wor!erCs wages to his heirs, they do not need a court order, because there is no need for an intestate proceeding. <hat they need is an A==.1A:.) $= @8.,S@.?. K,ule :..., 0oo! ..., Sec "L Also a valid payment/ when the payment of the employeesC wage through any of the authori3ed deductions, such as by virtue of a chec!9off provision, then that is also a valid form of payment. So if there is a +0A where there is a chec!9off provision for union dues, the employer will pay a portion of your salary directly to the union and it will no longer pass through you, and this is a valid form of payment. TIME OR FREQUENC( OF PA(MENT ART. .,1. Ti!e of a$!ent. 0 <ages shall be paid at least once every two 4#7 wee!s or twice a month at intervals not e&ceeding si&teen 41"7 days. .f on account of force majeure or circumstances beyond the employerCs control, payment of wages on or within the time herein provided cannot be made, the employer shall pay the wages immediately after such force majeure or circumstances have ceased. (o employer shall ma!e payment with less fre2uency than once a month. )he payment of wages of employees engaged to perform a tas! which cannot be completed in two 4#7 wee!s shall be subject to the following conditions, in the absence of a collective bargaining agreement or arbitration award/ 417 )hat payments are made at intervals not e&ceeding si&teen 41"7 days, in proportion to the amount of wor! completedM 4#7 )hat final settlement is made upon completion of the wor!. R@#e 4III, BooH III, Sec 1 "ec. 3. Ti!e of &a$!ent 4a7 <ages shall be paid not less often than once every two 4#7 wee!s or twice a month at intervals not e&ceeding si&teen 41"7 days, unless payment cannot be made with such regularity due to force majeure or circumstances beyond the employerCs control, in such case the employer shall pay the wages immediately after such force majeure or circumstances have ceased. 4b7 .n case of payment of wages by results involving wor! which cannot be finished in two 4#7 wee!s, payment shall be made at intervals not e&ceeding si&teen 41"7 days in proportion to the amount of wor! completed. =inal settlement shall be made immediately upon completion of the wor!. =,8IH8(+A $= ?AAM8() 5 @$< $=)8(J <ages shall be paid at least once every # wee!s or twice a month at intervals not e&ceeding 1" days. .t translates into twice a month\ EXCEPTION .n case of force majeure or in circumstances beyond the employerCs control, wherein the payment of wages on or within the time herein provided cannot be made, the employer shall pay the wages immediately after such force majeure or circumstances have ceased.

IX. CONDITIONS OF EMPLOYMENT


HOURS OF WOR: .. ART. A1. Nor!al 'ours of *or+. 0 )he normal hours of wor! of any employee shall not e&ceed eight 467 hours a day.

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4c7 (o child below 1- years of age shall be allowed to wor! between eight oC cloc! in the evening and si& oCcloc! in the morning of the following day and no child 1- years of age but below 16 shall be allowed to wor! between ten oCcloc! in the evening and si& oC cloc! in the morning of the following day. Sleeping time as well as travel time of a child engaged in public entertainment or information from hisEher residence to hisEher wor!place shall not be included as hours wor!ed without prejudice to the application of e&isting rules on employees compensation. NORMAL HOURS OF WOR: OF TEACHIN3 OR ACADEMIC PERSONNEL 000000000000000000000000000000000000000 DOLE0DECS0CHED0TESDA ORDER NO. 2 SERIES OF .--B CBASED ON NORMAL OR RE3ULAR TEACHIN3 LOADSD 0000000000000000000000000000 HOURS WOR:ED= MEANIN3 ART. A4. Aours *or+ed. 0 @ours wor!ed shall include 4a7 all time during which an employee is re2uired to be on duty or to be at a prescribed wor!placeM and 4b7 all time during which an employee is suffered or permitted to wor!. ,est periods of short duration during wor!ing hours shall be counted as hours wor!ed. )he implementing rules in 0oo! ..., ,ule . provide the guidelines to determine time wor!ed 4therefore should be paid7 or unwor!ed. <aiting time spent by an employee is considered wor!ing time if /aitin4 time is an inte4ral part of his /or0 or if the employee is re:uired or en4a4ed by an employer to /ait& <hether waiting time constitutes wor!ing time depends upon the circumstances of each particular case and is a 2uestion of fact.

@ealth personnel in cities and municipalities with a population of at least one million 41,BBB,BBB7 or in hospitals and clinics with a bed capacity of at least one hundred 41BB7 shall hold regular office hours for eight 467 hours a day, for five 4-7 days a wee!, e&clusive of time for meals, e&cept where the e&igencies of the service re2uire that such personnel wor! for si& 4"7 days or forty9eight 4 67 hours, in which case, they shall be entitled to an additional compensation of at least thirty percent 4;BU7 of their regular wage for wor! on the si&th day. =or purposes of this Article, Fhealth personnelF shall include resident physicians, nurses, nutritionists, dietitians, pharmacists, social wor!ers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. 2. RA -21. CHILD LABOR Sec. 1. )he same Act, as amended, is hereby further amended by adding new sections to be denominated as Sections 1#9A, 1#90, 1#9+, and 1#9 1 to read as follows/ "ec. 12-A. Aours of 6or+ of a 6or+ing C'ild. - Hnder the e&ceptions provided in Section 1# of this Act, as amended/ 417 A child below fifteen 41-7 years of age may be allowed to wor! for not more than twenty 4#B7 hours a wee!/ ?rovided, )hat the wor! shall not be more than four 4 7 hours at any given dayM 4#7 A child fifteen 41-7 years of age but below eighteen 4167 shall not be allowed to wor! for more than eight 467 hours a day, and in no case beyond forty 4 B7 hours a wee!M 4;7 (o child below fifteen 41-7 years of age shall be allowed to wor! between eight oTcloc! in the evening and si& oTcloc! in the morning of the following day and no child fifteen 41-7 years of age but below eighteen 4167 shall be allowed to wor! between ten oTcloc! in the evening and si& oTcloc! in the morning of the following day.S 1. DO No. B20,4 ser!es o& 2,,4 C6"7ter 2 < Ho@rs o& WorH "(CT,-N 15. Aours of 6or+ of a 6or+ing C'ild < )he following hours of wor! shall be observed for any child allowed to wor! under ,epublic Act (o. 9#;1 and these ,ules/ 4a7 =or a child below 1- years of age, the hours of wor! shall not be more than twenty #B hours a wee!, provided that the wor! shall not be more than four hours at any given dayM 4b7 =or a child 1- years of age but below 16, the hours of wor! shall not be more than eight hours a day, and in no case beyond B hours a wee!M and

REST PERIODS= MEAL PERIOD= SHORTENED MEAL PERIOD= COFFEE BREA: ART. A2. #eal eriods. 0 Subject to such regulations as the Secretary of *abor may prescribe, it shall be the duty of every employer to give his employees not less than si&ty 4"B7 minutes time9off for their regular meals. Hnder this article the meal period should not be less than "B minutes, in which case it is time9off or non9 compensable time. )he implementing rules 0oo! ..., ,ule ., Sec 7, allows the meal time to be less than "B minutes, under specified cases. 0ut such shortened meal time 4say ;B minutes7 should be with full pay, and of course, the time when the employee cannot eat, because he is still wor!ing, should also be paid. )he employer is re2uired to give his employees not less than "B minutes or 1 hour for their regular meals everyday. )he *+ does not specify as to what specific hour of the day the meal period are to be given. )he "B9minute meal period is not compensable because during this time, the wor!er does not wor!.

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)o shorten meal time to less than #B minutes is not allowed, if the so called meal time is less than #B minutes, it becomes only a rest period, and under the same section 7, is considered wor! time.

1$*8 1epartment Advisory (o. B#9#BB .M?*8M8()A).$( $= +$M?,8SS81 <$,N<88N S+@8M8S HEALTH PERSONNEL ART. A1. Nor!al 'ours of *or+. 0 )he normal hours of wor! of any employee shall not e&ceed eight 467 hours a day. @ealth personnel in cities and municipalities with a population of at least one million 41,BBB,BBB7 or in hospitals and clinics with a bed capacity of at least one hundred 41BB7 shall hold regular office hours for eight 467 hours a day, for five 4-7 days a wee!, e&clusive of time for meals, e&cept where the e&igencies of the service re2uire that such personnel wor! for si& 4"7 days or forty9eight 4 67 hours, in which case, they shall be entitled to an additional compensation of at least thirty percent 4;BU7 of their regular wage for wor! on the si&th day. =or purposes of this Article, Fhealth personnelF shall include resident physicians, nurses, nutritionists, dietitians, pharmacists, social wor!ers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. 8&ception to A,).+*8 91 on <ee!ly ,est 1ay Article 6; does not say that the normal hours of wor! is or should be eight hours but that it shall not e?ceed ei4ht& )herefore part9time wor! or a dayCs wor! of less than eighty hours is not prohibited. )he eight hour labor law was enacted not only to safe4uard the health and /elfare of the laborer or employee! but in a /ay to minimi-e unemployment by forcin4 employers! in cases /here more than 81hour operation in necessary! to utili-e different shifts of laborers or employees /or0in4 only for 8 hours each& )he second paragraph applies to health wor!ers in organi3ations covered by the +ode. @ealth personnel in government service are e&cluded from coverage of Articles 6# to 9". )heir wor! hours, night shift differential, and other employment benefits are defined in ,A 7;B-. )he customary service re2uiring resident physician to wor! for # hours a day violates the limitations prescribed by Article 6; and would not be permissible even if the resident physicians were paid additional compensation. .t cannot override the purpose of the limitation which is to safeguard the health and interest of hospital wor!ers. @owever, the forty9hour wee! will not apply if there is a training agreement between the resident physician and the hospital, and the training program is duly accredited or approved by appropriate government agency. .n such case there is no employer9employee relationship on the account of the approved training program. 40oo! ..., ,ule D, Sec 1-7

Q/ .s it possible to reduce the meal period to less than "B minutesJ .f so, under what instancesJ A? A8S, under Section $! 'ule ! Aoo0 &

Rule ,> 3oo+ ,,, "ec 7. #eal and Rest &eriods.- 8very employer shall give his employees, regardless of se&, not less than one 417 hour time9off for regular meals, e&cept in the following cases when a meal period of not less than #B minutes may be given by the employer provided that such shortened meal period is credited as compensable hours wor!ed of the employeeM 4a7 <here the wor! is non9manual wor! in nature or does not involve strenuous physical e&ertionM 4b7 <here the establishment regularly operates not less than 1" hours a dayM 4c7 .n cases of actual or impending emergencies or there is urgent wor! to be performed on machineries, e2uipment or installations to avoid serious loss which the employer should otherwise sufferM and 4d7 <here the wor! is necessary to prevent serious loss of perishable goods. Rest eriods or coffee brea+s running from five 4-7 to twenty 4#B7 minutes shall be considered as compensable wor!ing time. Shortcoffee brea!s of -5#B minutes is compensable. So if the employer gives the employees brea! in the morning and in the afternoon, this time is considered compensable. (ote that the employer is not obliged by law to give this coffee brea!. )he employer can lessen the "B9minute meal period into ;B minutes. And this is compensable. (ote that the employer shall pay the $vertime ?ay whenever proper. (ote that meal periods can be reduced to less than "B minutes but not less than #B minutes, and it is compensable. =or e&ample, if the meal period is reduced to -9 minutes it is compensable. )he employer cannot prohibit employees from leaving the premises during the meal period of employees. )he law in fact does not re2uire that the "B minutes to be spent in the employerCs premises. )here is no labor code provision to this effect.

WEE:L( REST DA( ART. ?1. Rig't to *ee+l$ rest da$. - 4a7 .t 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

WOR:WEE: < NORMAL ; COMPRESSED

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than twenty9four 4# 7 consecutive hours after every si& 4"7 consecutive normal wor! days. 4b7 )he employer shall determine and schedule the wee!ly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Secretary of *abor and 8mployment may provide. @owever, the employer shall respect the preference of employees as to their wee!ly rest day when such preference is based on religious grounds. Rule ,,,> 3oo+ ,,, "ection 2. 3usiness on "unda$s7Aolida$s.0All establishments and enterprises may operate or open for business on Sundays and @olidays provided that the employees are given the wee!ly rest day and the benefits due them under the law. )he rest day need not be a Sunday, because the 0lue Sunday *aw no longer finds application in the present. to determine what rest day will be best for his business. )here are certain types of establishments that derive more money during Sundays and Saturdays. And on the other hand, there may be some establishments that are not productive during Sundays. 8&ample/ Malls, 1epartment Stores. .n those establishments, it will be possible to schedule the employeesC rest day on days other than Sunday. )he employer has the prerogative to determine the employeeCs rest day. <hen it does, the employer can change the employeesC rest day only after giving a ($).+8, and the change will ta!e effect 1 wee! after such notice. 4a7 )he employer has to notify the employees of any change in the rest day. 4b7 )he change will have to ta!e effect at least 7 days after the change of schedule. )his is so as not to cause inconvenience on the part of the employees who may e&pect to be enjoying their rest day on a particular day. .f the employer decides to change it because that is his prerogative, he still has to inform his employees of the change in advance. B. )he choice of rest day rests upon the employer, is there an instance when the employer will have to give some deference to the employeesC choice of their rest dayJ A? A8S. Hnder Article 91 4b7, based on religious grounds. )he employer has to respect such employeesC preference. )b* (he employer shall determine and schedule the /ee0ly rest day of his employees subject to collective bar4ainin4 a4reement and to such rules and re4ulations the S+LE may provide& @o/ever! the employer shall respect the preference of employees as to their /ee0ly rest day /hen such preference is based on reli4ious 4rounds& EXCEPTION TO THE EXCEPTION Hnder the implementing rules, when it will cause serious obstruction or prejudice to the operations or underta!ing of the employer, the employer shall schedule the rest day of their choice for at least # days in a month. 0ut of course, customarily in the ?hilippines, the employer gives respect to the employeesC choice of rest day if the same is based on religious grounds.

"ection 3. 6ee+l$ Rest )a$.- 8very employer shall give his employees a rest period of not less than # hours after every " consecutive normal wor! days. "ec. 4. &reference of e! lo$ee. 0 )he pre9 ference of the employee as to his wee!ly day of rest shall be respected by the employer if the same is based on religious grounds. )he employee shall ma0e 0no/n his preference to the employer in writing at least seven 477 days before the desired effectivity of the initial rest day so preferred. <here, however, the choice of the employees as to their rest day based on religious grounds will inevitably result in serious prejudice or obstruction to the operations of the underta!ing and the employer cannot normally be e&pected to resort to other remedial measures, the employer may so schedule the wee!ly rest day of their choice for at least two 4#7 days in a month. Q? <hat happens on the seventh dayJ A? .t becomes the rest day. .t is mandatory on the part of the employer because it is provided for under Article 91. )hat is how we arrive on a 69hour wor! wee!. Q? <ill the seventh day be considered always and at all times the rest dayJ A? A8S. Q? 1oes the *+ tell us what specific day of the wee! will the employees rest day beJ A? ($. $f course, under the 0*H8 SH(1AA *A<, the employeesC rest day was imposed every Sunday. 0ut when the *abor +ode too! effect in 197 , it gave more fle&ibility on the part of the employer

DOES THE B CONSECUTI4E DA(S WOR:WEE: APPL( TO ALL EMPLO(ERS OR EMPLO(EESE NO, it does not apply to/ 4a7 @ealth personnel in cities or municipalities population of 1 million or 4b7 @ospitals with a bed capacity of at least 1BB.

with

)he population re2uirement and the bed capacity need not go together. )hey are to be ta!en separately.

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,emember that the bed capacity is not re2uired to be occupied as long as the re2uirement of at least a hundred is met $, you belong in a municipality or city with at least 1 million in population. .n this case, the normal wor!wee! consists of consecutive wor!days. .n effect, the rest day consists of # days. )he law does not tell us the specific days when the rest days will fall. )hey have B9hour wor!wee! and they will enjoy # rest days. )his is due to the nature of their job or activities involving more strenuous type of wor! compared to other establishments. ?8,S$((8* < shall include/ ,esident physicians, (urses, (utritionists, 1ietitians, ?harmacists, Social wor!ers, *aboratory technicians, ?aramedical technicians, ?sychologists, Midwives, Attendants, and All other hospital or clinic personnel. an additional compensation of at least ;BU of their regular wage for wor! on the si&th day. )here is nothing in the law that supports then S$*8Cs assertion that Bpersonnel in subject hospitals and clinics are entitled to a full /ee0ly /a4e for $ days if they have completed the >%1hourE51day /or0/ee0 in any 4iven /or0/ee0&; (eedless to say, the S$*8 e&ceeded his authority by including a # days off with pay in contravention of the clear mandate of the statute. Such an act the +ourt shall not countenance. Administrative interpretation of the law, we reiterate, is at best merely advisory, and the +ourt will not hesitate to stri!e down an administrative interpretation that deviates from the provision of the statute. ?olicy .nstruction to our mind unduly e&tended the statute. .t being inconsistent with and repugnant to the provision of Article 6;, as well as to ,A -9B1, ?. - is declared :$.1. B/ +an the employees be compelled to wor! during rest dayJ A? Article 9#. )he general rule is that under normal circumstances, the employer cannot re2uire to compel his employee to wor! on the latterCs scheduled rest day against his will. )he general rule however admits of certain e&ceptions, and these are found in Article 9# of the *abor +ode and Section " ,ule ... of the $mnibus ,ules. "ection @. 6'en *or+ on rest da$ aut'oriDed &1An employer may re:uire any of his employees to /or0 on his scheduled rest day for the duration of the follo/in4 emer4encies and e?ceptional conditionsC 1. .n case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earth2ua!e, epidemic, or other disaster or calamity, to prevent loss of life or property, or in case of force majeure or imminent danger to public safetyM .n case of urgent wor! to be performed on machineries, e2uipment or installations to avoid serious loss which the employer would otherwise sufferM .n the event of abnormal pressure or wor! due to special circumstances, where the employer cannot be ordinarily be e&pected to resort to other measuresM )o prevent serious loss of perishable goodsM <here the nature of the wor! is such that the employees have to wor! continuously for 7 days in a wee! or more, as in the case of the crew members of a vessel to complete a voyage and in other similar casesM <hen the wor! is necessary to avail of favorable weather or environmental conditions where performance or 2uality of wor! is dependent thereon.

@8A*)@ 4a7 4b7 4c7 4d7 4e7 4f7 4g7 4h7 4i7 4j7 4!7 4l7

&olic$ ,nstruction No. 54 Kissued by =ran!lin 1rilonL ,t sa$s in effect t'at t'ose 'ealt' ersonnel *ill 'ave to be considered aid 7 da$s a *ee+. ,s t'is validC ($, this was held to be void in the case of San 8uan de 9ios @ospital Employees Association vs& 3L'C! ,' "26383 )3ovember! 28! "##$* . )his is because it contravenes the *+ because the *+ does not say that these # days off shall be paid, but rather, it only says that there will be ;BU which will be added to the regular wage if they wor! on the rest day. )he *+ does not give them a full 7 days with pay but rather, only additional compensation. "an ;uan de )ios Aos ital (! lo$ees Association vs. N<RC >.,. (o. 1#";6; (ovember, #6, 1997 A cursory reading of Article 6; of the *abor +ode betrays petitionersC position that %hospital employees' are entitled to %a full wee!ly salary with paid # daysC off if they have completed the B9 hourE-day wor!wee!. '<hat Article 6; merely provides are/ 417 4#7 )he regular office hour of 6 hours a day, days a wee! for health personnelM and <here the e&igencies of service re2uire that health personnel wor! for " days or 6 hours, then such health personnel shall be entitled to

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(o employee shall be re2uired against his will to wor! on his scheduled rest day e&cept under the circumstances provided. ?rovided, however, that where an employee volunteers to wor! on his rest day under other circumstances, he shall e&press such desire in writing.

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.f the employee wor!s on his rest day, he is entitled to additional compensation and this is called 2'E6 76 2A=. )his is not the same as overtime pay. )his is additional compensation for the wor! of the employee for not more than 6 hours during his rest day. METHODS OF FIXIN3 COMPENSATION

*abor 4a7 4b7 4c7 4d7 4e7

Standards 0enefits covered under Art. 6#/ (ight Shift 1ifferentialM $vertime payM @oliday payM Service .ncentive *eaveM and Service +harges KArt 6#L

R@#e I, BooH III, Sect!o 2 E)7#o+ees ot co5ere$ *+ t6!s 7ro5!s!o "& ,overnment Employees

ART. ?7. )efinitions. - As used in t'is Title. 4f7 F.a4eF paid to any employee shall mean the remuneration or earnings, however designated, capable of being e&pressed in terms of money, whether fi&ed or ascertained on a time, tas!, 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 wor! 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 *abor and 8mployment, of board, lodging, or other facilities customarily furnished by the employer to the employee. FDair and reasonable valueF shall not include any profit to the employer, or to any person affiliated with the employer. .--- WOR:ERS STATUTOR( MONETAR( BENEFITS See on page -#7 =$O 2,,4 DOLE BWC MANUAL ON LABOR STANDARDS

<hether employed by the national government or any of its political subdivisions, including those employed in government9owned and 5controlled corporations. ,8AS$(/ )hey are governed by different set of laws, which are the +ivil Service *aw, the Administrative +ode, and by their respective charters. .f a government9owned or 5 controlled corporation has been incorporated, they are governed by the +orporation +ode and are conse2uently covered by the *abor +ode. 2& 6ana4erial Employees and members of the 6ana4erial Staffs Managerial employees if they meet all of the following conditions/ 1. )heir primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereofM Kformulate policiesL )hey customarily and regularly direct the wor! of two or more employees thereinM Ke&ecute management policiesL )hey have the authority to hire and fire employees of lower ran!, or their suggestions and recommendations to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight. Kimpose disciplinary actionsL

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X. MINIMUM LABOR STANDARD BENEFITS


EMPLO(EES EXEMPTED ART. :2. Coverage. - )he provisions of this )itle shall apply to employees in all establishments and underta!ings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and wor!ers who are paid by results as determined by the Secretary of *abor in appropriate regulations. As used herein, Fmana4erial employeesF refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. FDield personnelF shall refer to non9agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of wor! in the field cannot be determined with reasonable certainty.

,8AS$(/ Managerial employees are not usually employed and paid by the hour. )heir compensation is determined by their special training, e&perience or !nowledge, which re2uires the e&ercise of discretion and independent judgmentM or perform wor! related to management policies and general business operations along speciali3ed or technical lines. $fficers or members of the managerial staff if they perform the following duties and responsibilities/ 1. )he primary duty consists of the performance of wor! directly related to management policies of the employerM #. +ustomarily and regularly independent judgmentM e&ercise discretion and

;. )hey/ i. ,egularly and directly assist a proprietor or general managerial employee whose primary duty consists of the management of the establishment in which he is employed or a subdivision thereofM

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ii. 8&ecute, under general supervision, wor! along speciali3ed or technical lines re2uiring special training, e&perience or !nowledgeM or iii. 8&ecute, under general assignments and tas!s. supervision, special Also, because the nature of the wor! plus the fact that they are not employed in a business underta!ing. $& .or0ers paid by results .ncluding those who are paid by piece9wor!, ta!ay, pa!iao, or tas! basis, and other non9time wor! if their output rates are in accordance with the standards under Section 6 ,ule :.. 0oo! ... of these ,egulations, or where such rates have been fi&ed by the S$*8 in accordance with the aforesaid section. ,8AS$(/ )hey are not paid on an hourly basis but in their output. )heir pay is dependent upon the wor! done regardless of the time spent or employed in doing the wor!. Moreover, they are governed by specific contracts. )heir output should be fi&ed in accordance with Section 6 ,ule :.. 0oo! ... of the $mnibus ,ules, which provide that they shall receive not less than the applicable statutory wage rates prescribed by law for the normal wor!ing hours which shall not e&ceed 6 hours a day, or a proportion thereof for wor! less than the normal wor!ing hours. +lassification of wor!ers paid by result/ 1. ?iece ,ate #. Fob or tas! base. O4ERTIME WOR:= RULE ; EXECEPTIONS 3ENERAL RULE Article :7. <C. -4(RT,#( 6-RE <or! may be performed beyond eight 467 hours a day provided that the employee is paid for the overtime wor! an additional compensation e2uivalent to his regular wage plus at least #-U thereof. <or! performed beyond eight hours on a holiday or rest day shall be paid an additional compensation e2uivalent to the rate of the first eight hours on a holiday or rest day plus at least ;BU thereof. National S*i+yar6 an6 Steel Cor+oration vs. CIR 4 SCRA !(" ;%(#%< 18=.(.).$( %$vertime compensation is additional pay for service or wor! rendered or performed in e&cess of 6 hours a day by employees or laborers in employment covered by eight hour labor law 4now Art 677 and not e&empt from its re2uirements. .t is computed by multiplying the overtime hourly rate by the number of hours wor!ed in e&cess of eight.' )NB vs. )EMA an6 CIR %%1 SCRA 1"7 A%(!'B ,A).$(A*8 %:erily, there can be no other reason than that he is made to wor! longer than what is commensurate with his agreed compensation for the statutorily fi&ed or voluntarily agreed hours of labor he is supposed to do. <hen he does spend additional time to his wor!, the effect upon him is multi9 faceted, he puts in more effort, physical andEor mentalM he is delayed in going home to his family to enjoy the comforts

. )hey do not devote more than #BU of their hours wor!ed in a wor!wee! to activities, which are not directly and closely related to the performance of the wor! prescribed in the above9mentioned 1, # and ;. ,8AS$(/ )hey may be considered managerial employees as well. )hus, it would not be feasible to provide a fi&ed hourly rate of pay or ma&imum hours of wor! li!e managerial employees as previously mentioned. 3& Dield 2ersonnel

.f they/ 4a7 ,egularly perform their duties away from the principal or branch office or place of business of the employerM and 4b7 <hose actual hours of wor! in the field cannot be determined with reasonable certainty. ,8AS$(/ )hese wor!ers perform their jobs away from the employerCs place of business, and therefore not subject to the personal supervision of their employer. @is employer has no way of !nowing the e&act number of hours he is wor!ing in a day, li!e medical representatives and field salesmen. )heir hours of wor! cannot be determined with reasonable certainty. >& 6embers of the family /ho are dependent upon him for support ,8AS$(/ )he employer has already ta!en care of the sustenance, clothing, medical attendance or education of the particular members of his family. (ote that this category refers to husband and wife, parents and children, other descendants and ascendants, brothers and sisters whether in the full or half blood. .t does not include in9laws because they do not pertain to the same family. Also !eep in mind that the family must be dependent upon the employer for support. 5& @ousehold helpers 6& 2ersons in the personal service of another& 9omestic servants and persons in the personal service of another if they perform such services in the employerCs home which are usually necessary and desirable for the maintenance and enjoyment thereof, or minister to the personal comfort, convenience or safety of the employer as well as the members of the employerCs household. ,8AS$(/ )hey are already provided with living 2uarters, food, and e&tra clothing such that all in all, it would e&ceed the statutory minimum wage.

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 55 of 75

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thereofM he might have no time for rela&ation, amusement or sportsM he might miss important prearranged engagements, etc. .t is thus the additional wor!, labor or service employed and the adverse effects just mentioned of his longer stay in his place or wor! that justify and are the real reasons for the e&tra compensation that is called overtime pay.' Bisig ng ManggagaHa ng )*ili+ine Refining Co. vs. )*ili++ine Refining Co.$ In5. R L3'77#% "(&4"&!% $:8,).M8 ,A)8 0AS81 $( ,8>H*A, <A>8 %)he term ,8>H*A, 0AS8 ?AA e&cludes money received by an employee in different concepts , such as +hristmas bonus and other fringe benefits. )he phrase ,8>H*A, 0AS8 ?AA is clear, une2uivocal and re2uires no interpretation. .t means regular basic pay and necessarily e&cludes money received in different concepts such as +hristmas bonus and other fringe benefits.' Calte0 )*ili++ines vs. CIR R 41'4( %%&"4&!# %.n the computation of overtime pay, the premium pay for wor! done on Sundays, holidays and at night and other fringe benefits which are occasionally, not regularly, received and not by all employees, S@$H*1 ($) 08 A1181 )$ )@8 0AS.+ ?AA. Such inclusion into the regular or basic pay militates against the basic rationale of overtime pay, which is simply the e&tra compensation for the additional wor! done beyond that contemplated in the employment contract. @ence, when additional pay is given for any other purpose, it is illogical to include the same as the basis for the computation of overtime pay.' Manila Railroa6 Co. vs. CIR No. L32#%2 "7&4%&2' %An e&press instruction from the employer to the employee to render overtime wor! is not re2uired for the employee to be entitled to overtime payM it is sufficient that the employee is permitted or suffered to wor!. (either is an e&press approval by superior a prere2uisite to ma!e overtime wor! compensable. .f the wor! performed was necessary or that it benefited the company or that the employee could not abandon his wor! at the end of this eight hour wor! because there was no substitute ready to ta!e his place and he performed overtime services upon the order of his immediate superiorM notwithstanding the fact that there was a standing circular to the effect that before overtime wor! may be performed with pay, the approval of the corresponding department head should be secured, such overtime services are compensable in spite of the fact that said overtime services were rendered without the prior approval of the department head'

EXCEPTIONS Art!c#e A-. (!ergenc$ -verti!e 6or+& Any employee may be re:uired by the employer to perform overtime wor! in any of the following cases/ 4a7 <hen the country is at war or when any other national or local emergency has been declared by +ongress or the +hief 8&ecutiveM 4b7 <hen it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earth2ua!e, epidemic or other disaster or calamityM 4c7 <hen there is urgent wor! to be performed on machines, installation or e2uipment, in order to avoid serious loss or damage to the employer or some other cause of similar natureM 4d7 <hen the wor! is necessary to prevent loss or damage to perishable goodsM 4e7 <here the completion or continuation of the wor! started before the 6th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. Any employee re2uired to render overtime wor! under this Article shall be paid additional compensation re2uired in this +hapter. +$M?H*S$,A $:8,).M8 <$,N Article 69 enunciates the situations where the employer can legally compel his wor!ers to render overtime wor!. )he employer should pay his wor!ers who render overtime wor! the appropriate additional overtime compensation for such wor!. Aside from the instances mentioned in Art 69, the .,, authori3es compulsory overtime wor! when it is necessary %to avail of favorable weather or environmental conditions where performance or 2uality or wor! is dependent thereon 4Sec 1B, ,ule ., 0oo! ...7. .n cases not falling within any of the enumerated cases or instances, no employee may be made t wor! beyond 6 hours a day against his will 4Sec 1B, ,ule ., 0oo! ...7.

8DA(N =or purposes of Article 67, a %day' 4or %daily'7 is understood to be )@8 # @$H, ?8,.$1, <@.+@ +$MM8(+8S =,$M )@8 ).M8 )@8 8M?*$A88 ,8>H*A,*A S)A,)S )$ <$,N. .t is not necessarily the ordinary calendar day from 1# oC cloc! midnight to 1# oCcloc! midnight unless the employee starts wor!ing at 1# midnight, which is unli!ely in which case the start of the # 9hour period in computing his wor! day coincides with the start of the calendar day.

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SUN TZU NOTES


Any wor! in e&cess of 6 hours within the # hour period is considered as overtime wor! regardless of whether the wor! covers two calendar days. )he minimum wor!ing hours fi&ed by the act need not be continuous to constitute as %legal wor!ing day' of 6 hours as long as the 6 hours is within a wor! day. <or! in e&cess of 6 hours within a wor! day is considered as overtime regardless of whether this is performed in a wor! shift other than at which the employee regularly wor!s. EO 2-2 Re5!se$ A$)! !str"t!5e Co$e o& t6e P6!#!77! es CHAPTER / RE3ULAR HOLIDA(S AND NATIONWIDE SPECIAL DA(S Sect!o 2B. 'e4ular @olidays and 3ation/ide Special 9ays& 9

Hnless otherwise modified by law, order or proclamation, the following regular holidays and special days shall be observed in this country/

UNDERTIME NOT OFFSET B( O4ERTIME= ANALO3OUS CASES Art!c#e AA. %nderti!e not offset b$ overti!e& Hndertime wor! on any particular day shall not be offset by overtime wor! on any other day. ?ermission given to the employee to go on leave on some other day of the wee! shall not e&empt the employer from paying the additional compensation re2uired in this +hapter. Art!c#e -2. 'i4ht to service incentive leave& 4a7 8very employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay. 4b7 T6!s 7ro5!s!o s6"## ot "77#+ to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay at least five days and those employed in establishments regularly employing less than ten employees or in establishments e&empted from granting this benefit by the Secretary of *abor after considering the viability or financial condition of such establishment. 4c7 )he grant of benefit in e&cess of that provided herein shall not be made a subject of arbitration or any court or administrative action. Art!c#e -4. 'i4ht to holiday pay& 4a7 8very wor!er shall be paid his regular daily wage during regular holidays, e&cept in retail and service establishment regularly employing less than ten wor!ersM 4b7 )he employer may re2uire an employee to wor! on any holiday but such employee shall be paid a compensation e2uivalent to twice his regular rateM and 4c7 As used in this Article, SholidayS includes/ (ew AearTs 1ay, Maundy )hursday, >ood =riday, the ninth of April, the first of May, the twelfth of Fune, last Sunday of August, first of (ovember, the thirtieth of (ovember, the twenty9fifth and the thirtieth of 1ecember, thirty9first of 1ecember, and the day designated by law for holding a general election.

,egular @olidays

(ew AearTs 1ay

Fanuary 1

Maundy )hursday

Movable date

>ood =riday

Movable date

Araw ng Nagitingan 40ataan and +orregidor 1ay7

April 9

*abor 1ay

May 1

.ndependence 1ay

Fune 1#

(ational @eroes 1ay

*ast Sunday of August

0onifacio 1ay

(ovember ;B

+hristmas 1ay

1ecember #-

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SUN TZU NOTES

,i3al 1ay

1ecember ;B

407

(ationwide Special 1ays

All Saints 1ay

(ovember 1

*ast 1ay of the Aear

1ecember ;1

4#7 )he terms Slegal or regular holidayS and Sspecial holidayS, as used in laws, orders, rules and regulations or other issuances shall be referred to as Sregular holidayS and Sspecial dayS, respectively. Re7@*#!c Act No. -.// AN ACT DECLARIN3 THE FIRST DA( OF "AA66A<, THE TENTH MONTH OF THE ISLAMIC CALENDAR, A NATIONAL HOLIDA( FOR THE OBSER4ANCE OF (,)%< 5,TR AND THE TENTH DA( OF FA%<) A,;;A. THE TWELFTH MONTH OF THE ISLAMIC CALENDAR, A RE3IONAL HOLIDA( IN THE AUTOMNOMOUS RE3ION IN MUSLIM MINDANAO CARMMD FOR THE OBSER4ANCE OF (,)%< A)AA, AMENDIN3 FOR THE PURPOSE SECTION 2B, CHAPTER / OF EXECUTI4E ORDER NO. 2-2. OTHERWISE :NOWN AS THE ADMINISTRATI4E CODE OF .-A/, AND FOR OTHER PURPOSES.

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 58 of 75

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Sect!o 2. Section #", +hapter 7 of 8&ecutive $rder (o #9#, otherwise !nown as the ,evised Administrative +ode of 1967 is hereby amended to read as follows/

8idul =itr (ew years 1ay Araw ng Nagitingan 9 1ay7 Fanuary 1 40ataan and +orregidor *abor 1ay Maundy )hursday .ndependence 1ay (ational @eroes 1ay 0onifacio 1ay >ood =riday +hristmas 1ay ,i3al 1ay E!$@# F!tr b7 9 9

9 Movable 1ate 9 April 9 9 May 1 9 Fune 1# Movable date 9 *ast Sunday of August 9 (ovember ;B Movable date 9 1ecember #9 1ecember ;B

(ationwide Special @olidays 9 Movable date All Saints 1ay 9 (ovember 1 *ast 1ay of the Aear 9 1ecember ;1 9 Monday nearest April 9

Araw ng Nagitingan 40ataaan and +orregidor 1ay7

*abor 1ay

Monday nearest May 1

.ndependence 1ay

Monday nearest Fune 1#

(ational @eroes 1ay

*ast Monday of August

0onifacio 1ay

Monday nearest (ovember ;B

+hristmas 1ay

1ecember #-

,i3al 1ay

Monday nearest 1ecember ;B

Sec. #". 'e4ular @olidays and 3ation/ide Special 9ays 417 Hnless otherwise modified by law, order or proclamation, the following regular holidays and special days shall observed in the country. a7 ,egular @olidays (ew AearTs 1ay Maundy )hursday >ood =riday 9 Fanuary 1 9 Movable 1ate 9 Movable 1ate

2rovided! ho/ever )hat Eidul Adha shall be celebrated as a regional holiday in Autonomous ,egion in Muslim Mindanao.S

Re7@*#!c Act No. -4-2

>@#+ 22, 2,,/

AN ACT RATIONALIOIN3 THE CELEBRATION OF NATIONAL HOLIDA(S AMENDIN3 FOR THE PURPOSE SECTION 2B, CHAPTER /, BOO: I OF EXECUTI4E ORDER NO. 2-2, AS AMENDED, OTHERWISE :NOWN AS THE ADMINISTRATI4E CODE OF .-A/

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SUN TZU NOTES


SECTION .. Section #", +hapter 7, 0oo! . of 8&ecutive $rder (o. #9#, as amended, otherwise !nown as the Administrative +ode of 1967, is hereby amended to read as follows/ SSec. #", ,egular @olidays and (ationwide Special 1ays. J 417 Hnless otherwise modified by law, and or proclamation, the following regular holidays and special days shall be observed in the country/ a7 ,egular @olidays b7 (ationwide Special @olidays/ R"t!o "#e? %(ight wor! cannot be regarded as desirable, either from the point of view of the 8, or the wage earner. .t is uneconomical unless overhead costs are unusually heavy. =re2uently the scale of wages is higher an inducement to employment on the night shift, and the rate of production is generally lower' 4Shell +o. vs. (*H7 [ (ight shift differential not waivable. )he %waiver' rule is not applicable in night shift differential. )he additional compensation for nighttime wor! is founded on public policy, hence the same cannot be waived 4Artcle ", (++.7 5 KMercury 1rug +o., .nc. vs. (ardo 1ayaoL Art!c#e -B. Service char4es& All service charges collected by hotels, restaurants and similar establishments shall be distributed at the rate of 6- percent for all covered employees and 1- percent for management. )he share of the employees shall be e2ually distributed among them. .n case the service charge is abolished, the share of the covered employees shall be integrated into their wages. [ Service charge applies only to establishments collecting service charges, such as hotels, restaurants, lodging houses, night clubs, coc!tail lounges, massage clinics, bars, casinos and gambling houses, and similar enterprises, including those entities operating primarily as private subsidiaries of the government. 4Section 1, ,ule :., 0oo! ..., $mnibus ,ules7

(inoy A2uino 1ay

All Saints 1ay

*ast 1ay of the Aear

c7 .n the event the holiday falls on a <ednesday, the holiday will be observed on the Monday of the wee!. .f the holiday falls on a Sunday, the holiday will be observed on the Monday that follows/ ?rovided, )hat for movable holidays, the ?resident shall issue a proclamation, at least si& months prior to the holiday concerned, the specific date that shall be declared as a nonwor!ing day/ ?rovided, however, )he 8idul Adha shall be celebrated as a regional holiday in the Autonomous ,egion in Muslim Mindanao.S

XI. OTHER SPECIAL BENEFITS


?,8S.18().A* 18+,88 6-1 .1TH MONTH PA( Sec.. All employers are hereby re2uired to pay all their ran!9 file employees a 1;th month pay not later than 1ecember # of every year. <ith the removal of the ceiling ?1, BBB.BB all ran!9and9file employees are now entitled to a 1; th month pay regardless of the amount of basic salary that they received in a month, such employees as entitled to the benefit regardless of their designation or employment status and irrespective of method by which their wages are paid provided that they have wor!ed for at least 1 month during the calendar year.

8D8M?)81 8M?*$A8, a. b. c. d. government and any of its political subdivisions including >$++ employers already paying their employees a 1; th month pay or its e2uivalent employers of household helpers and persons in the personal service of another in relation to such wor!ers employers of those who are paid on purely commission, boundary or tas! basis and those who are paid a fi&ed amount for performing specific wor!

Art!c#e AB. 3i4ht shift differential& 8very employee shall be paid a night shift differential of not less than ten percent of his regular wage for each hour of wor! performed between ten oTcloc! in the evening and si& oTcloc! in the morning.

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[ )he term %its e:uivalent' shall include +hristmas bonus, mid9year bonus, cash bonuses and other payments amounting to not less than 1E1# of the basic salary. Sec. 4 )he minimum of the 1;th month pay re2uired by law shall not be less than 1E1# of the total basic salary earned by an employee within a calendar year. 8arned because it is possible that the employee has used his vacation leave, leave without pay which should not be counted. )he employer can provide for more if he so desire. Sec. # every married male employee in the private and public sector shall be entitled to a paternity leave of 7 days with full pay for the first four deliveries of the legitimate spouse with whom he is cohabiting. )he male employee shall notify his employer of the pregnancy of his spouse within reasonable time and the e&pected date of delivery. ?aternity leave refers to the benefit granted to a married male employee allowing him not to report for wor! for seven days but continues to earn compensation therefor, on the condition that his spouse delivered a child or suffered miscarriage for purposes of enabling him to effectively lend support to his wife in the period of recovery andEor nursing of a newly born child.

T!)e o& 7"+)e t? )he re2uired 1;th month Kpay shall be paid not later than 1ecember # of every year. An employer, however may give to his employee ] of the re2uired 1; th month pay before the opening of the regular school year and the other half on or before the # th of 1ecember of every year. .1t6 )o t6 7"+ o& res!' e$ or se7"r"te$ e)7#o+ee/ An employee who has resigned or whose services were terminated at anytime before the time for payment of the 1;th month pay is entitled to this monetary benefit on proportion to the length of time he wor!ed during the year, up to the time of his resignation or termination from the service, the payment maybe demanded by the employee upon the cessation of 8,988 relationship. )he benefits granted shall not be credited as part of the employees and other benefits. <or!ers paid by result are not entitled to this benefit only those who are paid on apiece rate basis are specifically mentioned by e&press provisions of the law. 0asic salary shall include all remuneration or earnings paid by an employer to an employee for services rendered but does not include allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary, such as the cash e2uivalent of unused vacation and sic! leave credits, overtime premium, night shift differential and holiday pay and cost9of9living9 allowance. @owever these salary related benefits should be included as part of the basic salary related benefits should be included as part of the basic salary in the computation of the 1;th month pay if by individual or collective agreement, company practice or policy, the same are treated as part of the basic salary of the employees. )he law provides that the only re2uirement is that the employee must have at least rendered 1 month of service during the calendar year. )he does not forfeit or there is no forfeiture provision under the law.

+$(1.).$(S =$, 8().)*8M8() $= ?A)8,(.)A *8A:8 1. #. ;. he is employed at the time of delivery of the child he has notified his employer of the pregnancy of his wife and her e&pected date of delivery his wife has given birth suffers miscarriage or abortion

)he employee shall accomplish a ?aternity (otification =orm to be provided for by the employer and submit the same to the latter together with a copy of his marriage contract or if not any proof of marriage contract who has availed of the paternity leave benefits shall with in reasonable period of time submit a copy of birth certificate of the newly9born child, death or medical certificate in case of miscarriage or abortion. .n case such paternity leave benefit is not availed, said leave shall not convertible to cash. .f the employer does not comply with what is mandated in ,.A. 6167 under section - the employer maybe subject to a fine not e&ceeding ?#-, BBB.BB or imprisonment of not less than ;B days nor more than "Bm days.

DOMESTIC ADOPTION ACT OF .--A < R.A. A222 SEC. .2 S@7er5!se$ Tr!"# Co@rt

(o person for adoption shall be finally granted until the adopter4s7 has been given by the court supervised trail custody period for at least " months within which parties are e&pected to adjust psychologically and emotionally to each other and establish a bonding relationship. 1uring said period, temporary parental authority shall be vested in the adopter4s7. )he court may motu propio or upon motion of any party reduce the trial period if it finds the same to be in the best interest of the adoptee, stating the reasons for the reduction of the period. @owever for alien adopters heEshe must complete the si& month trial custody. .f the child is below seven years of age and is placed with the prospective adopter4s7 through a pre9adoption placement authority issued by the department the prospective adopter shall enjoy all the benefits to which biological parents is entitled from the date the adoptee is placed with the prospective adopters.

PATERNIT( LEA4E ACT OF .--B0R.A A.A/

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SUN TZU NOTES


separation or de facto separation form spouse fro at least 1 year, as long as sheEhe is entrusted with the custody of the children "7 parent left solo or alone with the responsibility of parenthood due to declaration of nullity or annulment of marriage as decreed by a court or by a church as long as heEshe is entrusted with the custody of the children 77 parent left solo or alone with the responsibility of parenthood due to abandonment of a spouse for at least 1 year 67 unmarried fatherEmother who has preferred !eep and rear herEhis childE children instead of having others care for them or give them up to a written welfare institutionM 97 any other person who solely provides parental care and support to am child or childrenM 1B7 any family member who assumes the responsibility of head of family as result of the death, abandonment, disappearance or prolonged absence of the parents or solo parent [ A change in the status or circumstance of the parent claiming benefits under this Act, such that heEshe is no longer left alone with the responsibility of parenthood shall terminate hisEher eligibility for these benefits ?arental *eave shall mean leave benefits granted to solo parent to enable himEher to perform parental duties and responsibilities where physical presence is re2uired =le&ible <or! Schedule is the right granted to a solo parent employee to vary hisEher arrival and departure time without affecting the core wor! hours as defined by the employer Sec. B )he employer shall provide for fle&ible wor!ing schedule for solo parents/ ?rovided that the same shall not affect individual and company productivityM provided further that any employer may re2uest e&emption from the above re2uirements from the 1$*8 on certain meritorious grounds. Sec. A in addition to leave privileges under e&isting laws, parental leave of not more than 7 wor!ing days every year shall be granted to any solo parent employee who has rendered service of at least 1 year. ANTI04IOLENCE A3AINST WOMEN ; THEIR CHILDREN ACT OF 2,,40 R.A -2B2 "ec&2 )eclaration of olic$ 9 it is hereby declared that the state values the dignity of women and children and guarantees full respect for human rights. )he state recogni3es the need to protect the family and its members particularly women and children form violence and threats to their personal safety and security. )owards this end, the state shall e&ert efforts to address violence committed against women and children in !eeping with the fundamental freedoms guaranteed under the +onstitution and the ?rovisions of the Hniversal declaration of @uman rights, the +onvention on the 8limination of all forms of discrimination against women,

4?lease insert new retirement law, ,A 7" 1 and ,A 6-669+A() =.(1 )@.S $(8. S$,.7 LABOR AD4ISOR( ON RETIREMENT PA( LAW +overage/ )he ,etirement ?ay *aw shall apply to all employees in the private sector, regardless of their position, designation or status, and irrespective of the method by which their wages are paid. )hey shall include part9time employees, employees of service and other job contractors and domestic helpers or persons in the Kpersonal service and agricultural establishment or operations employing not more than 1B employees or wor!ers and employees of the (ational >overnment and its political subdivisions including government9owned and controlled corporations, if they are covered by the +ivil Service *aw and regulations. ART..12 FACILITIES FOR WOMEN )he Secretary of labor shall establish standards that will insure the safety and health of women employees in appropriate cases, he shall by regulations, re2uire employers to/ 1. provide seats proper for women and permit them to use such seat when they are free from wor! and during wor!ing g hours, provided they can perform their duties ion this position without detriment to efficiency to establish separate toilet and lavatories for men and women and provide at least dressing room for women to establish a nursery in a wor!place for the benefit of the women employees therein to determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the li!e

#. ;. .

SOLO PARENT WELFARE ACT0R.A.-A/2 1efinition of terms/ Solo ?arent9 any individual who falls under any of the following categories/ 17 #7 ;7 a woman who gives birth as a result of rape final conviction of the offender/ provided that the mother !eeps and raises the childM parent left solo or alone with the responsibility of parenthood due to death or spouseM parent left solo or alone with the responsibility of parenthood while the spouse is detained or is serving sentence for a criminal conviction for at least 1 year parent left solo or alone with the responsibility of parenthood due to physical andEor mental incapacity of a spouse as certified by a public medical practitioner parent left solo or alone with the responsibility of parenthood due to legal

-7

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+onvention on the rights of the +hild and the other international human rights instruments of which the ?hilippines is a party. Sec.A Protect!o Or$er < A Kprotection order is an order issued under this act for the purpose of preventing further acts of violence against a women or her child specified in section - of these Act- and granting other necessary relief. )he relief granted under a protection order serve the purpose of safeguarding the victim from further harm, minimi3ing any disruption in the victimsC daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. )he provisions of the protection order shall enforced by law enforcement agencies. )he protection orders that may be issued under this Act are the baran4ay protection order )A2+*! temporary protection order )(2+*! and permanent protection order& "(C. 42 Training of &ersons ,nvolved in t'e Res onding to 4iolence Against 6o!en and t'eir C'ildren Cases- All a4encies involved in respondin4 to violence a4ainst /omen and their children cases shall be re:uired to under4o education and trainin4 to ac:uaint them /ithC a& the nature! e?tend and causes of violence a4ainst /omen and their children H b. the legal rights of, and remedies available to, victims of violence against women and their children c. the services and facilities available to victims or survivors d. the legal duties imposed on police officers to ma!e arrest and to offer protection and assistance, and e. techni2ues for handling incidents of violence against women and their children that minimi3e the li!elihood of injury to the offender and promote the safety of the victim or survivor. )he ?(?, in coordination with *>HCs shall establish an education and training program for police officers and barangay officials to enable them to properly handle cases of violence against women and their children ARTICLE 2/-. "ecurit$ of Tenure. I .n cases of regular employment, the employer shall not terminate the services of an employee e&cept for a just cause or when authori3ed by this )itle. An employee who is unjustly dismissed from wor! shall be entitled to reinstatement without loss of seniority rights and to his bac!wages computed from the time his compensation was withheld from him up to time of his actual reinstatement. 4As amended by ,A "71-7 S8+H,.)A $= )8(H,8 is the right of the employee to continue wor! until terminated for a just or authori3ed cause )as provided by la/*& +$(S).)H).$(A* 0AS.S 4Art. 1;, Sec. ;, 1967 +onstitution7 )he State shall afford full protection to labor, local and overseas, organi3ed and unorgani3ed, and promote full employment and e2uality of employment opportunities for all. .t shall guarantee the rights of all wor!ers to self9 organi3ations, and peaceful concerted activities, including the right to stri!e in accordance with law. )hey shall be entitled to security of tenure, humane conditions of wor!, and a living wage. )hey shall also participate in policy and decision9 ma!ing processes affecting their rights and benefits as may be provided by law. )he State shall promote the principle of shared responsibility between wor!ers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. )he State shall regulate the relations between wor!ers and employers, recogni3ing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to e&pansion and growth. S)A)H)$,A 0AS.S 4Art. #79, *abor +ode [shown above7 MARQUEO: Although Art. #79 starts with % n cases of re4ular employment ???;, jurisprudence will show that security of tenure is guaranteed not only to regular employees, non9 regular employees also enjoy security of tenure, but only to a limited sense. CLASSIFICATION OF EMPLO(MENT AND :INDS OF EMPLO(EES ART,C<( 2:0. Regular and casual e! lo$!ent. 0 T he provisions of written agreement to the contrary notwithstanding and regardless of the oral agreements of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer e&cept where the employment has been fi&ed for a specific project or underta!ing, the completion or termination of which has been determined at the time of the engagement of the employee or where the wor! or service to be performed is seasonal in nature and the employment is for the duration of the season.

XII. RIGHT TO SECURITY OF TENURE


SECURIT( OF TENURE

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 63 of 75

SUN TZU NOTES


An employment shall be deemed to be casual if it is not covered by the preceding paragraph/ ?rovided, )hat any employee who has rendered at least one year of service, whether such service is continuous or bro!en, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity e&ists. MA,IH8O: 1o not forget that Art. #6B is ($) the yardstic! in determining employer9employee relationship. <hat is controlling is the four9fold test and 4now7 the economic reality test. Art. #6B applies only when the e&istence of employer9employee relationship is not in dispute. N.(1S $= 8M?*$AM8(): H(18, )@8 *A0$, +$18 1. ,egular 8mployment 9 an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer. 9A ,egular 8mployee may either be: a. ?ermanent 5 one who has an indefinite employment, whether passing the probationary stage or not b. ?robationary 5 one who is placed in a trial period whose performance is assessed whether satisfactory or not. .f performance is satisfactory, it is followed by a regular employment, if not, the employment is terminated. [ An employer has the prerogative whether to subject the employee with probationary employment or not. )hus, an employee may be considered as a permanent employee on his first day of wor!. #. +asual 8mployment 9 An employment shall be deemed to be casual if it is not covered by the preceding paragraph 4regular employment7 9 does not have security of tenure before reaching the one9year period, however, if he has rendered at least one year of service, whether such service is continuous or bro!en, he shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity e&ists. .?roject 8mployment 5 is one where the employment has been fi&ed for a specific project or underta!ing, the completion or termination of which has been determined at the time of the engagement of the employee Seasonal 8mployment 9 is one where the wor! or service to be performed is seasonal in nature and the employment is for the duration of the season. 9 +ourt decisions consider seasonal employees as regular employees, as their employment relationship is never severed but only suspended. 4Manila @otel, September ;B, 19"; ; ?hil. )obacco =lue9curing, 1ecember 1B, 19967 ART,C<( 2:1. &robationar$ e! lo$!ent. R ?robationary employment shall not e&ceed si& months from the date the employee started wor!ing, unless it is covered by an apprenticeship agreement stipulating a longer period. )he services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to 2ualify as a regular employee in accordance with reasonable standards made !nown by the employer to the employee at the time of his engagement. An employee who is allowed to wor! after a probationary period shall be considered a regular employee. -. ?robationary 8mployment 5 is one who is on tentative employment during which the employer determines whether he 4employee7 is 2ualified for permanent employment. 9 *+ provides that the duration of probation is " months. )he e&ceptions are the following : 4a7 ??? unless it is covered by an apprenticeship agreement stipulating a longer period; and 4b7 the Manual of ,egulations for ?rivate School provides a longer probationary period. ,ationale: MA,IH8O: 8ducation is the grass root of all profession. 9 Security of tenure is still available to probationary employees, but only for a limited period.

$)@8, +*ASS.=.+A).$( 4Special *aws7 1. +onstruction .ndustry 41epartment $rder (o. 19, Series of 199;7 a. ?roject b. (on9?roject b.1. probationary b.#. regular b.;. casual #. 0roadcast .ndustry 41$*8 ?olicy .nstruction (o. B7 [Same classification as in the *abor +ode. ?olicy .nstruction (o. B has been declared to be of ($ effect in the case of Son3a vs. A0S9+0( 4>.,. 1;6B-1, Fune 1B, #BB 7 .n ?rivate 8ducational .nstitutions 4Manual of ,egulations for ?rivate School7 [ as simply classified by Mar2ue3 a. Academic ?ersonnel a.1. Academic teaching a.#. Academic non9teaching )e?& (he librarian* b. (on9Academic ?ersonnel 5 those staff who perform administrative functions but are not involved in academic wor! [ )heir employment is ($) covered by the M,?S or by the ):8) Manual but by the *abor +ode. .n @ospitals I: Are ,esident ?hysicians considered employees of hospitalsJ A: MA,IH8O: .t depends. .f undergoing training, he is ($) an employee of the hospital. .f not undergoing training, he is an employee, but only on a term basis. 0AS.S: $mnibus ,ules, 0oo! ..., ,ule D9A, Sec.1-

;.

;.

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SUN TZU NOTES


,8S.18()S .( ),A.(.(>. I )here is employer9 employee relationship between resident physicians and the training hospitals, H(*8SS: 417 there is a training agreement between them; and 4#7 the training program is duly accredited or approved by the appropriate government agency. D&& EXCEPTIONS EMPLO(MENT TO RE3ULAR employment include hiring, wor! assignments, wor!ing methods, time, place and manner of wor!, tools to be used, processes to be followed, supervision of wor!ers, wor!ing regulations, transfer of employees, wor! supervision, lay9off of wor!ers and the discipline, dismissal and recall of wor!ers. 4?hilippine Airlines, .nc. vs. (*,+, >. ,. (o. 11-76-, Aug. , #BBB7. )hus, as held in one case, management retains the prerogative, whenever e&igencies of the service so re2uire, to change the wor!ing hours of its employees.

LIMITATIONS ON THE EXERCISE OF MANA3EMENT PRERO3ATI4ES )he e&ercise of management prerogative is not absolute but subject to the limitations imposed by law or by +0A, employment contract, employer policy or practice and general principles of fair play and justice. 1. R!'6t to H!re 9)his is inherently a management right because it is not found in the *abor +ode. @ence, it is not a statutory right. R!'6t to Pro)ote 9 ?romotion is the Sadvancement from one position to another with an increase in duties and responsibilities as authori3ed by law, and usually accompanied by an increase in salary.S

.( )@8 *A0$, +$18 1. Seasonal 8mployment #. ?roject 8mployment ;. +asual 8mployment FH,.S?,H18(+8 40rent School vs. Oamora, =ebruary 9, 199B7 . =i&ed )ermE?eriod 8mployment 5 an employment that will last only for a definite period, as agreed by the parties. 9)his !ind of employment is not per se illegal or against public policy, even if this !ind of employment is not mentioned in Art. #6B of the +ode. Such !ind of employment contract may be justified in the +ivil +ode. 9 MA,IH8O: Art. #6B does not prohibit agreements voluntarily agreed upon by the employer A(1 employee, provided that it is not used to circumvent the right of security of tenure.

#.

+onsent here is re2uired. ;. R!'6t to De)ote 9 1emotion means the movement from one position to another with a diminution in duties andEor status or ran!, not necessarily with a reduction in salary. 1emotion necessitates the issuance of a notification for demotion for cause.

XIII. MANAGEMENT PREROGATIVE


CONCEPT )he right of an employer to regulate, generally without restraint, according to its own discretion and judgment, every aspect of its business, subject to limitations of the law. .t should be e&ercised in good faith. )his privilege is inherent in the right of employers to control and manage their enterprise effectively.

^ .t may be e&ercised by an employer when the interests of the employer reasonably demand subject to the following limitations/ a.7 .t must not whimsically. be e&ercised arbitrarily, capriciously or

b.7 .t must be for a cause c.7 .t must pass the test of reasonableness, e2uity and good faith.

^ =ailure on these re2uirements may amount to illegal or constructive dismissal, as the case may be. .t is even more so if the demotion is not part of the company policy. . R!'6t to Tr" s&er 9 )ransfer is a Smovement from one position to another which is of e2uivalent ran!, level or salary, without brea! in service. )his right can be challenged if it is e&ercised arbitrarily or capriciously or in the absence of good faith. +onsent here on the part of the employee is not re2uired since this can only be e&ercised by the management in accordance with best interest of the company by trying to see where a particular employee can be best ma&imi3ed. )ransfer is reasonable if there is a need to augment wor! force because of a wor! assignment.

SCOPE (8tent of #anage!ent &rerogative to &rescribe 6or+ing #et'ods> Ti!e> &lace> #anner and -t'er As ects of 6or+ 8mployers have the freedom and prerogative, according to their discretion and best judgment, to regulate and control all aspects of employment in their business organi3ations. Such aspects of ^ ^

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SUN TZU NOTES


ReG@!s!tes &or " 4"#!$ Tr" s&er? a.7 ,easonable or it must have a sound purpose. b.7 +onvenience or welfare of the employee. c.7 (ot prejudicial to the employee d.7 (ot involve a demotion of ran! or status or a diminution of the employeeCs salary, benefits and other benefits. :iolation of the above amounts to constructive dismissal. -. R!'6t to D!s)!ss .t is a right to on the management as a measure of self9protection on the part of the employer against all acts inimical to its interest. .t is not simply a prerogative but a right because it is found in the *abor +ode. OTHERS? ,eorgani3ation and abolition of positions 8arly retirement program c. :oluntary resignation program d. Fob evaluation program EMPLO(MENT POLICIES " $ STIPULATIONS a. ,estrictive covenant clauses b. (on9competing clause and competitive employment ban 9 c. (o spouse employment policy 5 to avoid conflict of interest re2uirements who transgresses the company rules and regulations. 41eles, Fr. vs. (*,+, >. ,. (o. 1#1; 6, March 9, #BBB7. )he employer cannot be compelled to maintain in his employ the undeserving, if not undesirable, employees. 4Shoemart, .nc. vs. (*,+, >. ,. (o. 7 ##9, Aug. 11, 19697. DISMISSAL A.7 Act@"# D!s)!ss"# 0.7 Co str@ct!5e D!s)!ss"# 9 act of 2uitting because continued employment is rendered impossible, unreasonable or unli!ely as in the case of an offer involving a demotion in ran! and a diminution in pay. 3ROUNDS FOR TERMINATION OF EMPLO(MENT A.2 ;%"T CA%"(" 1Art. 2:22 1. #. ;. . -. ^ Serious Misconduct <illful disobedience E >ross and habitual neglect of duties =raud and <illful breach or offense +ommission of a crime or offense $ther analogous causes Ser!o@s M!sco $@ct )he act complained of must be related to the performance of the duties of the employee such as would show that the employee concerned is unfit to continue wor!ing with the employer.

a. b.

XIV. TERMINATION OF EMPLOYMENT


EMPLO(ERNS RI3HT TO DISCIPLINE ^ ,ight to 1iscipline.

)he important element is that the act must be committed in relation to the employeeCs wor!. 8lements/ a. an improper act b. willful in nature c. of a grave and aggravated character d. wor! related ^ W!##&@# D!so*e$!e ce )o constitute disobedience, the employeeCs conduct must be willful or intentional.

)he employerCs right to conduct the affairs of his business, according to its own discretion and judgment, includes the prerogative to instill discipline in its employees and to impose penalties, including dismissal, upon erring employees. )his is a management prerogative where the free will of management to conduct its own affairs to achieve its purpose ta!es form. )he only criterion to guide the e&ercise of its management prerogative is that the policies, rules and regulations on wor!9related activities of the employees must always be fair and reasonable and the corresponding penalties, when prescribed, commensurate to the offense involved and to the degree of the infraction. 4St. MichaelCs .nstitute vs. Santos, >. ,. (o. 1 -#6B, 1ec. , #BB1M +onsolidated =ood +orporation vs. (,*+, ;1- S+,A 1#9, 1;9 K1999L7. .nstilling discipline among its employees is a basic management right and prerogative. Management may lawfully impose reasonable penalties such as dismissal upon an employee

.t is characteri3ed by a wrongful and perverse mental attitude rendering the employeeCs act inconsistent with the proper subordination. )he orders, regulation or instruction of the employer against which the employee willfully disobeys must be/ a. b. c. d. reasonable and lawful refers both to the !inds and character of the direction and commands and the manner in which they are made of given sufficiently !nown to the employee in connection with the duties which the employee has been engaged to discharge

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3ross Ne'#ect 5 means an absence of that diligence which an ordinary man would use in his own affairs. .t must be both and habitual but in =uentes vs. nlrc, the S+ held that gross negligence suffices. Fr"@$ " $ W!##&@# Bre"c6 o& Tr@st Fr"@$ 9 any act or omission or concealment which involves a breach of legal duty, trust and confidence justly reposed, and is injurious to another. Must be committed against the employer or representative and in connection with the employeeCs wor!. )he position imposed must be imposed with trust and confidence. )he breach committed by an employee against third persons not in connection with his wor! and which does not involve his employer is not a ground for the dismissal. .t implies willfulness or wrongful intent, an innocent non9disclosure of facts by the employee done to the employee will not constitute just cause for the dismissal. #. ;. . -. ". 7. reinstatement negates the employeesC intent to abandon his job. ,e2uisites/ a. =ailure to report for wor! or absence without any valid or justifiable reasonM and b. +lear intention to sever the employee9employer relationship. Se&ual @arassment >ross .nefficiency or ?oor ?erformance 1rug Hse or Abuse 4,A 91"-7 Attitude ?roblem +onflict of .nterest *ac! of +ommon Sense

3.2 A%TA-R,F() CA%"(" 1Art. 2:32 1. #. ;. . .nstallation of *abor9Saving 1evices ,edundancy ,etrenchment to ?revent *osses +losing or +essation of $peration of the 8stablishment or Hnderta!ing H(*8SS the closing is for the purpose of circumventing the provisions of law.

OTHER AUTHORIOED CAUSES? -. ". 7. 6. 9. 1B. 11. 1#. 1;. 1 . 1-. 1". 17. 16. )otal and ?ermanent 1isability of An 8mployee 1isease (ot +urable in Si& Months :alid Application of a Hnion Security +lause 8&piration of ?eriod in )erm 8mployment +ompletion of ?roject in ?roject 8mployment =ailure in ?robation Sale Amounting to +losure of 0usiness ,elocation of 0usiness to a 1istant ?lace 1efiance of ,eturn9to9<or! $rder +ommission of .llegal Acts in a Stri!e (on9feasible ,einstatement =loating Status or $ff91etail 0eyond Si& Months ,esignation :iolation of a +ontractual +ommitment e.g. being a consultant to a competitor 19. ,etirement #B. 1eath of employee ^ I st"##"t!o o& L"*or0S"5! ' De5!ces

8lements/ a. the breach must be wor!9relatedM and b. the position must be impressed with trust and confidence 4employee has custody over the funds, money or other property of the company7 I)7ort" t? Management has wider discretion in terminating employees holding position impressed with trust and confidence. 0reach is said to be willful if intentional, if done !nowingly, deliberately and without justifiable e&cuse. ^ ^ ^ Co))!ss!o o& " Cr!)e or " O&&e se

+onviction is not necessary to effect termination on this ground. )he 2uantum of evidence is merely substantial evidence. Ot6er A "#o'o@s C"@ses )hese are causes that are in one or more respects similar to the above9mentioned causes, and have been delivered by the S+. )he following were held to be just causes.

,eduction of the number of wor!ers in a companyCs factory made necessary by the introduction of machinery in the manufacture of its products is justified. )here can be no 2uestion as to the right of the manufacturer to use new labor9saving devices with a view to effecting more economy and efficiency in its method of production. Re$@ $" c+

1. A*" $o )e t 9 prolonged absence is not alone a sufficient basis to say that an employee has abandoned his wor!. Absences must also fall under gross and habitual neglect. )he immediate filing of a complaint for illegal dismissal against an employer, with a prayer for

,edundancy e&ists where the services of an employee are in e&cess of what is reasonably demanded by the actual re2uirement of the enterprise. )he following are the causes of redundancy/ o $ver9hiring of wor!ers

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SUN TZU NOTES


1ecreased volume of business 1ropping of a particular product line Streamlining of operations *ac! of demand for products

o o o o

TERMINATION OF ACADEMIC PERSONNEL 4Manual of ,egulation of ?rivate Schools shall govern and suppletorily by the *abor +ode7 ^ 1. Section 9 Schools/ 4#7 of the Manual of ,egulation of ?rivate

Retre c6)e t to Pre5e t Losses ReG@!s!tes &or " 4"#!$ Retre c6)e t? a. )he retrenchment is necessary to prevent losses and such losses are provenM b. <ritten notice to the employees and to the 1epartment of *abor and 8mployment at least one moth prior to the intended date of retrenchmentM and c. ?ayment of separation pay e2uivalent to one moth pay or at least ] month pay for every year of service, whichever is higher. Fo@r St" $"r$s o& Retre c6)e t? a. b. )he losses e&pected should be substantial and not merely de minimis in e&tent. )he substantial loss apprehended must be reasonably imminent, as such imminence can be perceived objectively and in good faith by the employer. ,etrenchment must be reasonably necessary and li!ely to effectively prevent the e&pected losses. Alleged losses, if already reali3ed, and the e&pected imminent losses sought to be forestalled, must be proven by sufficient and convincing evidence. C#os@re o& B@s! ess ^ +losure of business is allowed whether or not the business is losing. .f the business is not losing but its owner, for reasons of his own, wants to get out of the business, he in good faith can lawfully do so anytime. Fust as no law forces anyone to go into business, no law compels anybody to stay in business. )he prevailing rule now is that in case of closure due to serious business losses, then the employer is not under any obligation to give its employees separation pay. A!#)e t or D!se"se ReG@!s!tes? a. )he employee suffers from a disease and his continued employment is prohibited by law or prejudicial to his health or to the health of his co9employees. )here is a certification by a competent public health authority that the disease is of such nature or at such a stage that is cannot be cured within a period of si& months even with proper medical treatment. 1.

1isgraceful or .mmoral +onduct .mmoral +onduct 9 any act that is inimical to the public welfare and policy as e&pressed in law. 1isgraceful +onduct 9 that scandalous, or dishonorable. which is shameful, in the

#. ;. . -.

>ross .nefficiency and ?erformance of 1uties

.ncompetence

(egligence in Neeping School and Student ,ecords or )ampering with or =alsification of )hese ,ecords 0eing (otoriously Hndesirable. Selling of )ic!ets or +ollection of Any +ontribution in Any =orm or for Any ?urpose or ?rojects <hatsoever, whether voluntary or otherwise 8D+8?) >irl or 0oy Scout Membership =ees among others

c. d.

REQUISITES FOR 4ALID TERMINATION 1. #. ?rocedural ,e2uirementsM A(1 Substantial ,e2uirements such as the e&istence of a just or authori3ed cause >UST CAUSES CD.O. No. - Iss@e$ >@ e 2., .--/D <ritten notice served on the employee specifying the ground for termination, and giving to such employee reasonable opportunity within which to e&plain his side. Krule DD..., section 1 4a7 L <ritten notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. Krule DD..., section # 417 4b7L

#.

)here must be a hearing or conference during which the employment concerned, with the assistance of counsel if the employee so desires, so that he may be given an opportunity to respond to the charge, present his evidence or rebut the evidence presented against him. As long as the substantive re2uirements are complied with, the termination is valid, but defective. )he employer may be held liable for indemnity in the form damages, for not having complied with the procedural aspect of due process. .f only the procedural re2uirements and not the substantial re2uirements are complied with, the dismissal is invalid and illegal. .t is a deprivation of an employee of his right to due process. AUTHORIOED CAUSES

b.

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SUN TZU NOTES


Subject to the constitutional right of wor!ers to security of tenure and their right to be protected against dismissal e&cept for a just and authori3ed cause and without prejudice to the re2uirement of notice under Article #6; of this +ode, the employer shall furnish the wor!er whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the 1epartment of *abor and 8mployment. Any decision ta!en by the employer shall be without prejudice to the right of the wor!ers to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the (ational *abor ,elations +ommission. )he burden of proving that the termination was for a valid or authori3ed cause shall rest on the employer. )he Secretary of the 1epartment of *abor and 8mployment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the 1epartment of *abor and 8mployment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass layoff. 2. Sect!o ., Art!c#e III, .-A/ Co st!t@t!o (o person shall be deprived of life, liberty and property without due process of law. EFFECT OR CONSEQUENCES OF 4ALID DISMISSAL >eneral ,ule/ <hen an employee is dismissed and the dismissal complies with both substantive and procedural due process, separation pay is not given. 8&ception/ .f one is dismissed based on a just cause, and such cause does not constitute serious misconduct nor reflect the employeesC moral character, Separation pay may be validly awarded to the employee concern. )his is called the 1.S+8,(.(> +$M?ASS.$( 1$+),.(8. ^ )he award of Separation ?ay is called a =.(A(+.A* ASS.S)A(+8 and is awarded based on e2uity. .t is a measure of social justice where the employee is validly dismissed for causes not constituting serious misconduct or those reflecting on his moral character. .n most cases, the Supreme +ourt awarded financial assistance e2uivalent to one9half month pay for every year of service. >UST CAUSE 9 Separation pay, in lieu of reinstatement, shall include the amount e2uivalent at least to one 417 month salary or to one 417 month salary for every year of service, whichever is higher, a fraction of at least si& 4"7 months being considered as one 417 whole year including regular allowances. .f not regular, not included.

1.

Serve a written notice upon the wor!er at least one month before the intended date of the termination. 1.$. (o. 9 states %;B days.'

)his is to inform the employee of the impending loss of his employment, thus enable him to loo! for a fallbac! position at the earliest opportunity. #. Serve a written notice upon the 1epartment of *abor and 8mployment at least one month or ;B days before the intended date thereof. )his is in order for the 1$*8 to/ a. 1etermine the validity of the dismissalM and b. )o intervene for a possible conciliation or mediation )o give Separation ?ay where warranted or applicable. PRE4ENTI4E SUSPENSION ^ )he right to impose preventive suspension is a management prerogative although it is not found in the *+. .t is found in its implementing and regulations. ;.

4"#!$ S@s7e s!o ? .f the employees continued employment poses a serious and imminent threat to the life and or property of the employer or of his co9wor!ers. 4section ;, rule D.:, boo! :7 .t is not a form of penaltyM it is more of a protective measure underta!en by the employer. $ne cannot impose a penalty because the employee cannot be punished without due process. .n practice, preventive suspension notice should be in writing. Ma&imum ?eriod/ ;B days )he employer shall thereafter a7 ,einstate the wor!er in his former or in a substantially e2uivalent positionM or b7 )he employer may e&tend the period of suspension, provided that during the period of e&tension, he pays the wages and other benefits due to the wor!er concerned. .n such a case, the wor!er shall not be bound to reimburse the amount paid to him during the e&tension if the employer decides, after completion of the hearing, to dismiss the wor!er.

DUE PROCESS .. Art!c#e 2// C*D

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^ AUTHORIOED CAUSE 5 Separation pay is as follows/ a7 .n case of termination due to the installation of labor9saving devices or redundancy, the wor!er affected thereby shall be entitled to a separation pay e2uivalent to at least one 417 month pay or to at least one 417 month pay for every year of service, whichever is higher. b7 .n case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or underta!ing not due to serious business losses or financial reverses, the separation pay shall be e2uivalent to one 417 month pay or at least one9half 41E#7 month pay for every year of service, whichever is higher. A fraction of at least si& 4"7 months shall be considered one 417 whole year. c7 .n cases of closures or cessation of operations of establishment or underta!ing due to serious business losses or financial reverses, there shall be no separation pay. CONSEQUENCES OF ILLE3AL illegal dismissal up to the date of the employeeCs actual reinstatement. #. ,einstatement or separation reinstatement is no longer feasible pay incase

>eneral ,ule/ ,estoration of the employee to his previous position or to a substantially e2uivalent position without loss of seniority rights and other privileges. 8&ceptions/ a. strained relationship b. it is legally or physically impossible c. because of supervening events d. when employee voluntarily opts to be awarded separation pay ;. 1amages particularly moral and e&emplary where warranted

CORPORATE OFFICERS ^ )hree 4;7 officers which a corporation must have under the statute/ president, secretary, and treasurer. @owever, the law does not limit corporate officers to these three. Section #- of the +orporation +ode gives corporations the widest latitude to provide for such other offices, as they may deem necessary. )he by9laws may and usually do provide for such other officers, e.g., vice president, cashier, auditor, and general manager. +onse2uently, the Supreme +ourt has held that one who is included in the by9laws of a corporation in its roster of corporate officers is an officer of said corporation and not a mere employee.

EFFECT OR DISMISSAL ^

Article #79, *+/ .n cases of regular employment, the employer shall not terminate the services of an employee e&cept for a just cause or when authori3ed by this )itle. An employee who is unjustly dismissed from wor! shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full bac!wages, inclusive of allowances, and to his other benefits to their monetary e2uivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. .n a host of cases, the court has upheld the employeeCs right to security of tenure in the face of oppressive management behavior and management prerogative. Security of tenure is a right which may not be denied on mere speculation of any unclear and nebulous basis. OF AN ILLE3ALL( DISMISSED

?ersons *iable/ Art. #69. <ho are liable when committed by other than natural person. 9 .f the offense is committed by a corporation, trust, firm, partnership, association or any other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership, association or entity. 0? "6 4+orporation +ode of the ?hilippines7 Sec& 3"& Liability of directors! trustees or officers& 1 9irectors or trustees /ho /illfully and 0no/in4ly vote for or assent to patently unla/ful acts of the corporation or /ho are 4uilty of 4ross ne4li4ence or bad faith in directin4 the affairs of the corporation or ac:uire any personal or pecuniary interest in conflict /ith their duty as such directors or trustees shall be liable jointly and severally for all dama4es resultin4 therefrom suffered by the corporation! its stoc0holders or members and other persons& >eneral ,ule/ $fficers of a corporation are not personally liable for their official acts unless it is shown that they have e&ceeded their authority. 8&ceptions/ a7 S<here the incorporators and directors belong to a single family, the corporation and its

RI3HTS EMPLO(EE 1.

0ac!wages 9 the salary that the employee would have earned had he no been illegally dismissed. .t is computed from the date of the illegal dismissal up to the date of the

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 70 of 75

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members can be considered as one in order to avoid its being used as an instrument to commit injustice,S or to further an end subversive of justice. .n the case of +laparols vs. +., involving almost similar facts as in this case, it was also held that the shield of corporate fiction should be pierced when it is deliberately and maliciously designed to evade financial obligations to employees. applicable individual or collective bargaining agreement and voluntary employer practice or policy. EFFECT ON EMPLO(MENT STATUS +ompensation of 8mployees during the Si&9month Suspension ^ 8mployees are not entitled to their wages and benefits during the "9month period. )he reason is, within the said period, the employer9employee relationship is deemed suspended. )he employment relationship being suspended, both the employer and the employees cease to be bound, at least temporarily, by the basic terms and conditions of their employment contract 9 the employer regarding his obligation to provide salary to his wor!ersM and on the part of the wor!ers, to provide their services to the former. 8ffect of Suspension of <or! 8&ceeding " Months ^ .n the #BB- case of Mayon @otel Q ,estaurant vs. Adana, K>. ,. (o. 1-7"; , May 1", #BB-L, the @igh +ourt declared that Article #6" is clear 9 there is termination of employment when an otherwise bona fide suspension of wor! e&ceeds si& 4"7 months. Moreover, even assuming arguendo that the cessation of employment on April 1997 was merely temporary when hotel operations were suspended due to the termination of the lease of the old premises, it became dismissal by operation of law when petitioners failed to reinstate respondents after the lapse of si& 4"7 months, pursuant to Article #6". And even assuming that the closure was due to a reason beyond the control of the employer, it still has to accord its employees some relief in the form of severance pay. 8ffect of 8mployment of the 8mployee in $ther 8stablishments during "9Month ?eriod ^ .n the #BB- case of F?* Mar!eting ?romotions vs. +A, K>. ,. (o. 1-19"", Fuly 6, #BB-L, it was established that private respondent9employees sought employment from other establishments even before the e&piration of the si& 4"79month period provided by law. )hey admitted that all three of them applied for and were employed by another establishment after they received the notice from F?*. +onse2uently, it was held that petitioner F?* cannot be said to have terminated their employment for it was they themselves who severed their relations with F?*. )hus, they are not entitled to separation pay, even on the ground of compassionate justice. +learly, the principle in the law which grants separation pay applies only when the employee is dismissed by the employer, which is not the case in this instance. .n see!ing and obtaining employment elsewhere, private respondents effectively terminated their employment with F?*. ANALO3OUS SITUATION ^ )here is no law on temporary retrenchment or lay9 off, Article #6" applies only by analogy. ^ Suspension of operation may involve only a section or department of the company and not necessarily the entire operations.

b7

Hnless they have e&ceeded their authority, corporate officers are, as a general rule, not personally liable for their official acts, because a corporation, by legal fiction, has a personality separate and distinct from its officers, stoc!holders and members. @owever, this fictional veil may be pierced whenever the corporate personality is used as a means of perpetuating a fraud or an illegal act, evading an e&isting obligation, or confusing a legitimate issue. .n cases of illegal dismissal, corporate directors and officers are solidarily liable with the corporation, where terminations of employment are done with malice or in bad faith. 40ogo9Medellin Sugarcane ?lanters Association v. (*,+, >.,. (o. 976 " September #-, 19967

XV. SUSPENSION OF BUSINESS OPERATIONS

BASIS ^ Article #6"/ 8mployment is deemed not terminated when there is/ 1. 0ona9fide suspension by the employer of the operation of his business or underta!ing for a period not e&ceeding si& 4"7 monthsM #. =ulfillment by the employee of a military dutyM or ;. =ulfillment by the employee of a civic duty. ^ Sec .1#, ,ule, 0oo! :./

)he employer9employee relationship shall be deemed suspended in case of suspension of operation of the business or underta!ing of the employer for a period not e&ceeding si& 4"7 months, unless the suspension is for the purpose of defeating the rights of the employees under the +ode, and in case of mandatory fulfillment by the employee of a military or civic duty. )he payment of wages of the employee as well as the grant of other benefits and privileges while he is on a military or civic duty shall be subject to special laws and decrees and to the

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 71 of 75

SUN TZU NOTES


^ )he burden to prove bona9fide suspension of operation is on the employer. cases involving all wor!ers, whether agricultural or non9agricultural/ 1. Hnfair labor practice casesM #. )ermination disputesM ;. .f accompanied with a claim for reinstatement, those cases that wor!ers may file involving wages, rate of pay, hours of wor! and other terms and conditions of employmentM . +laims for actual, moral, e&emplary and other forms of damages arising from the employer9employee relationsM -. +ases arising from any violation of Article #" of this +ode, including 2uestions involving the legality of stri!es and loc!outsM and ". 8&cept claims for employees compensation, social security, medicare and maternity benefits, all other claims arising from employer9employee relations, including those of persons in domestic or household service, involving an amount e&ceeding five thousand pesos 4?-,BBB.BB7, whether or not accompanied with a claim for reinstatement. 4b7 )he +ommission shall have e&clusive appellate jurisdiction over all cases decided by *abor Arbiters. +ases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the *abor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. 4As amended by ,A "71-7

DISTIN3UISH &ro) STOPPA3E o& WOR: OR SUSPENSION o& OPERATION ^ Art. 1#64c7 )he Secretary of *abor and 8mployment may li!ewise order stoppage of wor! or suspension of operations of any unit or department of an establishment when there is non9compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of wor!ers in the wor!place. <ithin twenty9four hours, a hearing shall be conducted to determine whether an order for the stoppage of wor! or suspension of operations shall be lifted or not. .n case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of wor! or suspension of operation. TEMPORAR( OR PERIODIC SHUTDOWN " $ TEMPORAR( CESSATION OF WOR: ^ Section 7, ,ule .:, 0oo! ... )emporary or periodic shutdown and temporary cessation of wor!. 4a7 .n cases of temporary or periodic shutdown and temporary cessation of wor! of an establishment, as when a yearly inventory or when the repair or cleaning of machineries and e2uipment is underta!en, the regular holidays falling within the period shall be compensated in accordance with this ,ule. 4b7 )he regular holiday during the cessation of operation of an enterprise due to business reverses as authori3ed by the Secretary of *abor and 8mployment may not be paid by the employer. G5or To ics No. 1@-1:. "ee addendu!H .-. >URISDICTION OF THE LABOR ARBITER

4c7

Appeal/ (*,+, then +A 4Special +ivil Action under ,ule "-7, then S+ 4+ertiorari under ,ule -7

SCOPE OF >URISDICTION Cre&er to " .0B "*o5eD CONCURRENT >URISDICTION o& OTHER A3ENCIES ^ Art. 1#6/ :isitorial and enforcement powers. 5 4a7 )he Secretary of *abor and 8mployment or his duly authori3ed representatives, including labor regulations officers, shall have access to employerTs records and premises at any time of the day or night whenever wor! is being underta!en therein, and the right to copy therefrom, to 2uestion any employee and to investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this +ode and of any labor law, wage order or rules and regulations issued pursuant thereto. 4b7 )he provisions of Article #17 of this +ode to the contrary notwithstanding and in cases where the relationship of employer9employee still e&ists, the Secretary of *abor and 8mployment or his duly authori3ed representatives shall have the power to order and administer, after due notice and hearing, compliance with the labor standards provisions of this +ode and other

ORI3INAL " $ EXCLUSI4E >URISDICTION OF LA ^ Art. #17 Furisdiction of *abor Arbiters and the +ommission. 5 4a7 8&cept as otherwise provided under this +ode, the *abor Arbiters shall have original and e&clusive jurisdiction to hear and decide, within thirty 4;B7 calendar days after the submission of the case by the parties for decision without e&tension, even in the absence of stenographic notes, the following

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SUN TZU NOTES


labor legislation based on the findings of labor regulation officers or industrial safety engineers made in the course of inspection, and to issue writs of e&ecution to the appropriate authority for the enforcement of their order, e&cept in cases where the employer contests the findings of the labor regulation officer and raises issues which cannot be resolved without considering evidentiary matters that are not verifiable in the normal course of inspection. )he Secretary of *abor and 8mployment may li!ewise order stoppage of wor! or suspension of operations of any unit or department of an establishment when non9compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of wor!ers in the wor!place. <ithin twenty9four hours, a hearing shall be conducted to determine whether an order for the stoppage of wor! or suspension of operations shall be lifted or not. .n case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of wor! or suspension of operation. .t shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective the order of the Secretary of *abor and 8mployment or his duly authori3ed representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article. Any government employee found guilty of violation of, or abuse of authority under this Article shall, after appropriate administrative investigation, be subject to summary dismissal from the service. )he Secretary of *abor and 8mployment may by appropriate regulations re2uire employers to !eep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this +ode. 1epartment is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this +ode, arising from employer9employee relations/ ?rovided, )hat such complaint does not include a claim for reinstatement/ ?rovided, further, )hat the aggregate money claims of each employee or househelper do not e&ceed five thousand pesos 4?-,BBB7. )he ,egional 1irector or hearing officer shall decide or resolve the complaint within thirty 4;B7 calendar days from the date of the filing of the same. Any sum thus recovered on behalf of any employee or househelper pursuant to this Article shall be held in a special deposit account, and shall be paid, on order of the Secretary of *abor and 8mployment or the ,egional 1irector directly to the employee or househelper concerned. Any such sum not paid to the employee or househelper, because he cannot be located after diligent and reasonable effort to locate him within a period of three 4;7 years, shall be held as a special fund of the 1epartment of *abor and 8mployment to be used e&clusively for the amelioration and benefit of wor!ers. ELEMENTS o& ART. .2-? 1. )he claim is presented by an employee or person employed in domesticE household service or house helperM #. +laim arises from employer9employee relationsM ;. +laimant does not as! for reinstatement 4if there is reinstatement, *A7Mand . )he aggregate claim of each employee or house helper does not e&ceed ?-,BBB. 4if it e&ceeds, *A7. ^ Art. #"1.Furisdiction of voluntary arbitrators and panel of voluntary arbitrators. 5 )he voluntary arbitrator or panel of voluntary arbitrators shall have original and e&clusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the collective bargaining agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding Article. Accordingly, violations of a collective bargaining agreement, e&cept those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the collective bargaining agreement. =or purposes of this Article, gross violations of a collective bargaining agreement shall mean flagrant andEor malicious refusal to comply with the economic provisions of such agreement. )he +ommission, its ,egional $ffices and the ,egional 1irectors of the 1epartment of *abor and 8mployment shall not entertain disputes, grievances or matters under the e&clusive and original jurisdiction of the voluntary arbitrator or panel of voluntary arbitrators and shall immediately dispose and refer the same to the grievance machinery or voluntary arbitration provided in the collective bargaining agreement. 4As added by ,A "71-7

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4d7

4e7

4f7

Art. 1#9/ ,ecovery of wages, simple money claims and other benefits. 5 Hpon complaint of any interested party, the ,egional 1irector of the 1epartment of *abor and 8mployment or any of the duly authori3ed hearing officers of the

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SUN TZU NOTES


occurrence of such a stri!e or loc!out, jurisdiction over the same or certify it to the +ommission for compulsory arbitration. =or this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions andEor injunctions as are issued by the Secretary of *abor and 8mployment or the +ommission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the loc!ing9out employer of bac!wages, damages and other affirmative relief, even criminal prosecution against either or both of them. )he foregoing notwithstanding, the ?resident of the ?hilippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any labor dispute in such industries in order to settle or terminate the same. MI3RANT WOR:ERS AND O4ERSEAS FILIPINO ACT CRA A,42D Sec. 1B. Money +laims. 5 (otwithstanding any provision of law to the contrary, the *abor Arbiters of the (ational *abor ,elations +ommission 4(*,+7 shall have the original and e&clusive jurisdiction to hear and decide, within ninety 49B7 calendar days after the filing of the complaint, the claims arising out of an employer9 employee relationship or by virtue of any law or contract involving =ilipino wor!ers for overseas deployment including claims for actual, moral, e&emplary and other forms of damages. CI4IL DISPUTE 4S CORPORATE DISPUTE ^ LABOR DISPUTE 4S INTRA0

Art. #"#.Furisdiction over other labor disputes. 5 )he voluntary arbitrator or panel of voluntary arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadloc!s. 4As added by ,A "71-7 Appeal/ +A 4?etition for ,eview under ,ule ;7, then S+ 4+ertiorari under ,ule -7 Art. #";. 4g7 <hen, in his opinion, there e&ists a labor dispute causing or li!ely to cause a stri!e or loc!out in an industry indispensable to the national interest, the Secretary of *abor and 8mployment may assume jurisdiction over the dispute and decide it or certify the same to the +ommission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending stri!e or loc!out as specified in the assumption or certification order. .f one has already ta!en place at the time of assumption or certification, all stri!ing or loc!ed out employees shall immediately return to wor! and the employer shall immediately resume operations and readmit all wor!ers under the same terms and conditions prevailing before the stri!e or loc!out. )he Secretary of *abor and 8mployment or the +ommission may see! the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same.

+.:.* 1.S?H)8 4,8>H*A, +$H,)S7

.n line with the national concern for and the highest respect accorded to the right of patients to life and health, stri!es and loc!outs in hospitals, clinics and similar medical institutions shall, to every e&tent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be e&hausted to substantially minimi3e, if not prevent, their adverse effects on such life and health, through the e&ercise, however legitimate, by labor of its right to stri!e and by management to loc!out. .n labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the stri!ing union or loc!ing9 out employer to provide and maintain an effective s!eletal wor!force of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and ade2uate protection of the life and health of its patients, most especially emergency cases, for the duration of the stri!e or loc!out. .n such cases, therefore, the Secretary of *abor and 8mployment may immediately assume, within twenty four 4# 7 hours from !nowledge of the

.t is settled jurisprudence that a cause of action has three elements, to wit/ 1. #. ;. a right in favor of the plaintiff by whatever means and under whatever law it arises or is createdM an obligation on the part of the named defendant to respect or not to violate such rightM and an act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff.

LABOR DISPUTE CLAD Art. #1# / 4l7 S*abor disputeS includes any controversy or matter concerning terms or conditions of employment or the association or representation of persons in negotiating, fi&ing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the pro&imate relation of employer and employee. INTRA0CORPORATE DISPUTE CRTCD

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 74 of 75

SUN TZU NOTES


.ntra9+orporate 1ispute 9 one which arises between a stoc!holder or corporate officers and a corporation. +orporate $fficer 9 are the president, vice9 president, secretary, treasurer. o *abor Arbiters have no jurisdiction over termination of corporate officers and stoc!holders which, under the law, is considered intra9corporate dispute. .t must be emphasi3ed that a corporate officerCs dismissal is always a corporate act andEor intra9corporate controversy and that nature is not altered by the reason or wisdom which the 0oard of 1irectors may have in ta!ing such action. )he ,egional )rial +ourts 4not S8+7 now have jurisdiction under ,. A. 6799 4Securities ,egulation Act of #BBB7. Furisdiction of ,)+ includes adjudication of monetary claims of the corporate officer who was dismissed, 4such as unpaid salaries, leaves, 1;th month pay, bonuses, etc.7, damages and attorneyTs fees. 4*o3on vs. (*,+, >. ,. (o. 1B7""B, Fan. B#, 199-, # B S+,A 17 . +laims for actual, moral, e&emplary and other forms of damages arising from the employer9 employee relationsM +ases arising from any violation of Article #" of this +ode, including 2uestions involving the legality of stri!es and loc!outsM 8&cept claims for 8mployees +ompensation, Social Security, Medicare and maternity benefits, all other claims, arising from employer9 employee relations, including those of persons in domestic or household service, involving an amount e&ceeding five thousand pesos 4?-,BBB.BB7 regardless of whether accompanied with a claim for reinstatement.

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".

_A fortiori, the decision or award of the voluntary arbitrator or panel of arbitrators should li!ewise be appealable to the +ourt of Appeals, in line with the procedure outlined in ,evised Administrative +ircular (o. 199-, just li!e those of the 2uasi9judicial agencies, boards and commissions enumerated therein.

C"se L"%? Article #"1 of the *abor +ode accordingly provides for e&clusive original jurisdiction of such voluntary arbitrator or panel of arbitrators over 417 the interpretation or implementation of the +0A and 4#7 the interpretation or enforcement of company personnel policies. Article #"# authori3es them, but only upon agreement of the parties, to e&ercise jurisdiction over other labor disputes. $n the other hand, a labor arbiter under Article #17 of the *abor +ode has jurisdiction over the following enumerated cases/ . . . 4a7 8&cept as otherwise provided under this +ode the *abor Arbiters shall have original and e&clusive jurisdiction to hear and decide, within thirty 4;B7 calendar days after the submission of the case by the parties for decision without e&tension, even in the absence of stenographic notes, the following cases involving all wor!ers, whether agricultural or non9agricultural/ 1. #. ;. Hnfair labor practice casesM )ermination disputesM .f accompanied with a claim for reinstatement, those cases that wor!ers may file involving wages, rates of pay, hours of wor! and other terms and conditions of employmentM

If you know your enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle SUN TZU 75 of 75

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