Professional Documents
Culture Documents
capital & labor, by providing for certain standards of terms & conditions of
EENT or providing a legal framework w/in w/c these terms & conditions & the
EENT relationship may be negotiated, adjusted & administered.
2 Divisions of Labor Legislation
1. Labor Standards sets out the minimum terms, conditions & benefits of
EENT that EERS must provide or comply w/ & to w/c EES are entitled as a
matter of legal right.
- minimum requirements prescribed by existing laws, rules &
regulations relating to wages, hrs of work, cost-of-living allowance and other
monetary & welfare benefits, including occupational safety & health standards.
- material or substance to be processed
2. Labor Relations defines the status, rights & duties and the institutional
mechanisms, that govern the indiv & collective interactions of EERS, EES, or
their representatives.
- mechanism that processes the substance
Labor physical toil although it does not necessarily exclude the application of
skill (thus skilled & unskilled labor)
Skill the familiar knowledge of any art/science, united w/ readiness & dexterity
in execution/performance or in the application of the art/science to practical
purposes.
Work (broader than labor) covers all forms of physical/mental exertion, or
both combined, for the attainment of some obj other than
recreation/amusement per se.
Worker (broader than EE) may refer to self-employed people & those
working in the service & under the control of another, regardless of rank, title,
or nature of work.
- any member of the labor force whether employed/unemployed
Employee a salaried person working for another who controls or supervises the
means, manner or method of doing the work.
Other Consti provisions that protect the Rs/promote the welfare of workers
R to form unions, assocs or societies for purposes not contrary to law
R of self-org even for govt EES.. No officer/Ee of the Civil Service shall
be removed/suspended
& wealth.
Govt shall increase the salary scales of the other officials & EES
Career civil service EES shall be entitled to separation pay & retirement
benefits, OR may be considered for reemployment in the govt
Consti prol-labor, but recognizes the indispensable role of the private sector,
encourages private enterprise and provides incentives to needed investments
Police Power as the Basis
-
the power of the govt to enact laws, w/in Constitutional limits to promote
the order, safety, health, morals & general welfare of society
power inherent in govt to protect itself & all its constituents, & for this
purpose to hold the govt immune so far as necessary, from any limitatins
imposed in the past.
Birth of the LC
Blas Ople -
father of the LC
4. Special Laws (SSS law, GSIS law, Agrarian Reform law, the 13th-month
pay law, the Magna Carta for Public Health Workers)
Art 3. [Declaration of Basic Polici] The State shall afford protection to labor,
promote full EENT, ensure equal work opportunities regardless of sex, race
or creed, and regulate the relations bet workers & EERS. The State shall
assure the rights of workers to self-org, collective bargaining, security of
tenure, and just & humane conditions of work.
Balanced Approach shared responsibility. Worker & EER sectors are
interdependent.
Art 6. [Applicability] All Rs & benefits granted to workers under this Code shall,
except as may otherwise be provided herein, apply alike to all workers,
whether agricultural or non-agricultural.
-
subj to LC
LC
Art 10. [Conditions of Ownership] No title to the land acquired by the tenantfarmer under PD 27 shall be actually issued to him unless & until he has
become a full-fledged member of a duly recognized farmers coop.
Title to the land acquired pursuant to PD 27 or the Land Reform
Program of the Govt shall not be transferable except by hereditary succession
or to the Govt in accdance w/ the provisions of PD 27, the Code of Agrarian
Reforms & other existing laws & regulations.
Art 11. [Implementing Agency] The Dept of Agrarian Reform shall promulgate the
necessary rules & regulations to implement the provisions of this Chapter.
*Land for the landless battlecry dramatizing the increasingly urgent demand of
the dispossessed for a plot of earth as their place under the sun.
*CARP Law signed by Cory, declaring full land ownership in favor of the
beneficiaries of the PD 27.
Share tenancy abolished, put the agricultural leasehold sys in its stead, geared
towards eventual ownership of land by its tillers
Consti -
undertake the just distribution of all agri lands, subj to such priorities &
reasonable retention limits as the Congress may prescribe,
Compensation scheme: Sec 18 of CARP: Title to all expropriated properties shall
be transferred to the State only upon full payment of compensation of their
respective owners.
Retention Limits provided for by RA 6657 :
as otherwise provided.. no
person may own/retain directly/indirectly, any public/private agri land, the size
of w/c shall vary accdg to factors governing a viable family-sized farm, such
as commodity produced, terrain, infrastructure, & soil fertility as determined by
the Presidential Agrarian Reform Council (PARC).
3 hectares may be awarded to each child of the landowner, subj to the ff
qualifications: (1.) he is at least 15 y/o, and (2) he is actually tilling the land
or directly managing the farm; Provided, that landowners whose lands have
been covered b PD 27 shall be allowed to keep the area originally retained
by them thereunder; Provided further, that orig homestead grantees or direct
compulsory heirs who still own the org homestead at the time of the approval
of this Act shall retain the same areas as long as the continue to cultivate
said homestead.
Lands not covered
1. Lands obtained through homestead patent:
Homestead Act gives a needy citizen a piece of land where he may
build a modest house for himself & family & plant what is necessary for
subsistence & for the satisfaction of lifes other needs.
- superior over the rights of tenants
2. Residential Subdivisions not considered agricultural. An agricultural leasehold
cannot be established on land w/c has ceased to be devoted to cultivation or
farming bcoz of its conversion into a residential subd.
3. Livestock, poultry & Swine raising lands: Sec 2 of RA 6657 w/c includes
private agri lands devoted to commercial livestock, poultry & swine raising in
the definition of commercial farms is invalid. They are covered by the
agrarian reform prog of the State.
an increased output invariably gives more work to more men, & never in
the history of the world has it more than temporarily, and then for only a
very short time, diminished by the number of men at work in any trade
2 kinds of funds: (1) the Revenue w/c is over & above what is
necessary for the maintenance; and (2) the Stock w/c is over & above
shat is necessary for the EENT of their masters.
increase of the revenue & stock of every country and cannot increase
w/o it. The increase of revenue & stock is the increase of national wealth.
An Exploited Class J. Reynato Puno
-
Aim: A more equitable distribution & ownership of land, w/ due regard to the
rights of landowners to just compensation & to the ecological needs of the
nation
Basis: the R of farmers & regular farm workers, who are landless, to own
directly or collectively the lands they till or, in the case of other farm workers,
to receive a share of the fruits thereof
The State:
-
shall respect the R of small landowners & shall provide incentives for
voluntary land-sharing
may resettle landless farmers & farm workers in its own agricultural
estates
shall provide support to such fishermen thru appropriate tech & research,
adequate financial, production & marketing assistance
owners of agri land have the oblig to cultivate directly or thru labor
admin the lands they own & thereby make the land productive.
May lease undeveloped lands of pub domain to qualified entities for the
devt of capital-intensive farms, traditional & pioneering crops esp those
for export (subj. to Rs of beneficiaries)
Definitions
1. Agrarian Reform the redistribution of lands, regardless of crops/fruits
produced, to farmers & regular farm workers who are landless,
irrespective of tenurial arrangemt, to include the totality of factors &
support services designed to lift the economic status of the beneficiaries
and all other arrangemts alternative to the physical redistribution of lands
(production or profit-sharing, labor admin, distribution of shares of stock)
2. Agriculture, Agricultural Enterprise or Agricultural Activity the cultivation
of the soil, planting of crops, growing of fruit trees, incl. the harvesting of
such farm products, & other farm activities
3. Agricultural land land devoted to agricultural activity, and NOT classified
as mineral, forest, residential, commercial or industrial land
4. Agrarian Dispute any controversy relating to tenurial arrangements,
the original homestead grantees or direct compulsory heirs who still own
the orig homestead shall retain the same areas as long as they continue
to cultivate said homestead
Multinational Corps all lands of the pub domain leased, held, or possessed by
multi corps or assocs, and other lands owned by the govt, or govt-owned/controlled corps, assocs, institutions or entities, devoted to existing &
operational agribusiness or agro-industrial enterprises, operated by multicorps
shall be programmed for acquisition & distribution immediately upon effictivity
Ancestral Lands shall include, but not limited to, lands in the actual,
continuous & open possession & occupation of the community and its
members, provided that the Torrens System shall be respected
in the autonomous regions, the respective legislature may enact their own
laws on ancestral domain subj to the provisions of the Consti, this Act
and other national laws.
developed
Procedure for Acquisition of Private Lands
1. After having identified the land, the landowners & beneficiaries, DAR shall
send its notice to acquire the land to the owners;
2. w/in 30 days from date of receipt, landowners shall inform the DAR of
his acceptance/rejection of the offer;
a. if landowner accepts the offer, the LBP shall pay the landowner of
the purchase price of the land w/in 30 days after he executes &
delivers a deed of transfer in favor of the Govt and surrenders
the Cert of Title
b. in case of rejection or failure to reply, DAR shall conduct
summary admin proceedings to determine compensation of the
land
3. upon receipt of the landowner of the payment, or in case of rejection or
no response fr the landowner, upon the deposit w/ an accessible bank or
the compensation, the DAR shall take immediate possession of the land
& shall request the Register of Deeds to issue a TCT in the name of the
RP.
4. Any party who disagrees w/ the decision may bring the matter to the
court
tax declarations
Corporate Farms
-
RA 9700 Act Strengthening the CARP, extending the acquisition & distribution
of all agricultural lands, instituting necessary reforms, amending for the
purpose certain provisions of RA 6657
-
State shall protect Filipino enterprises against unfair foreign competition &
trade practices
State shall recognize & enforce the Rs of rural women to own & control
land
Added Definition
1. Rural women women who are engaged directly/indirectly in farming
and/or fishing as their source of livelihood, whether paid or unpaid,
regular or seasonal, or in food preparation, managing the household,
caring for the children, & other similar activities
2. Landless beneficiary one who owns less than 3 hectares of agri land
only when these beneficiaries have rcvd 3 hectares each, shall the
remaining portion of the landholding, if any, be distributed to other
beneficiaries
Landicho v Sia
Facts:
3 parcels of land were originally owned by the Aragons, tenanted by the
late Arcadio Landicho from 1949 until his death in 1972, afterwhich, his
tenancy rights were succeded by his son, petitioner Francisco Landicho (the
other petitioners were Buenaventura (Franciscos son), and Federico
(Franciscos brother), helped him cultivate the land
in 1976, Francisco voluntarily surrendered his tenancy Rs over the land to
the Aragons through a notarized kasulatan for a consideration of P1,000,
but petitioners continued cultivating the land until 1987 when Francisco
executed another notarized kasulatan thru w/c he surrendered his tenancy
rights for a consideration of P3,000.
On the same day as the execution of the 1987 kasulatan, the lands were
sold by the Aragons for P50,000 to respondent Felix Sia, who in turn
converted the same to a residential subd w/o a DAR clearance and ejected
the petitioners therefrom.
Peitioners filed a protest before the DAR alleging that they are the tenants
of the lands and claimed that they are entitled to a disturbance
compensation. They alleged that they were fooled into signing over their
tenancy rights thru the machinations of the Aragons.
The respondents in their answer, denied such allegation and added that the
petitioners are barred by estoppel, laches and prescription
Issue 1: WON petitioners are tenants of the land
Held: A tenant is defined as a person who, himself and w/ the aid available
from w/in his immediate farm household, cultivates the land belonging to, or
possessed by another, w/ the latters consent for purposes of production,
sharing the produce w/ the landholder under the share tenancy system, or
paying to the landholder a price certain or ascertainable in produce or in
money or both, under the leasehold tenancy system
For a tenancy relationship to exist, all of the ff essential requisites must be
present:
1) the parties are the landowner & the tenant
2) the subj matter is agricultural land
3) there is consent bet the parties
4) the purpose is agricultural production
5) there is personal cultivation by the tenant
6) there is sharing of the harvests bet the parties
In 1987, the GSIS acquired the interest of the respondent bank and took
over the control & mgt of the bank and renamed it as GSIS Family
Savings Bank.
The designation of the petitioner as OIC & caretaker was recalled,
however his appointment as Acting Asst VP was retained.
In line w/ its policy to attain financial stability, the respondent bank
adopted measures, one of w/c is an early retirement program.
In april of 2001, petitioner opted to avail himself of this retirement
package, (supposedly under protest) & received the amt of P1,342M as
retirement pay.
In july 2002, petitioner filed a complaint against resp bank for constructive
dismissal & underpayment of wages, 13th month pay & retirement benefits
before the Labor Arbiter. He alleged discrimination & unfair treatment, and
intense pressure on the part of the resp bank forced him to retire at the
prime of his life.
PRE-EMPLOYMENT
Art 12. It is the policy of the State:
1. to promote and maintain a state of full employment through improved
manpower training, allocation and utilization;
The DOLE
-
whether for profit or not: provided, that any person or entity w/c, in any
manner, offers or promises for a fee EENT to 2/more persons shall be
deemed engaged in recruitment & placement
Private fee-charging EEnt Agency any person/ entity engaged in the
recruitment & placement of workers for a fee w/c is charged directly/indirectly
from the workers or employers or both
License a document issued by the DOLE authorizing a person/entity to operate
a private EENT agency
Private recruitment entity any person/assoc engaged in the recruitment &
placement of workers, locally/overseas without charging, directly/indirectly any
fee from the workers or employers.
Authority a document issued by the DOLE authorizing a person/assoc to
engage in recruitment & placement activities as a private recruitment entity
Seaman any person employed in a vessel engaged in maritime navigation
Overseas EENT EENT of a worker outside the PH
Emigrant any person, worker or otherwise, who emigrates to a foreign country
by virtue of an immigrant visa or resident permit to its equivalent in the
country of destination
of Employment Services (BES) (now BLE) may, in the case of the NCR,
exercise such power, whenever the DOLE deems it appropriate.
The decisions of the regional offices of the BES if so authorized by the Sec
of DOLE shall be appealable to the NLRC upon the same grounds provided
in Art 233 hereof.
The decisions of the NLRC shall be final & unappealable.
Minister of Labor has the power to impose & collect fees, based on rates
recommended by the BES. Such fees shall be deposited in the National
Treasury as a special acct of the General Fund, for the promotion of the
objectives of the BES, subj to the provisions of Sec 40 of PD 1177.
PD 850 replaced BES w/ BLE, and created POEA
AO 186 made licensing of local recruitment agencies and the issuance
of work permits to non-resident aliens and EENT registration certificates
to resident aliens a function of the regional offices of DOLE
RA 8795 required the establishment of a Public Employment Service
Office (PESO) in capital towns, cities and other strategic areas
o
Ra 6885 created WHIP, a program w/c requires the DPWH and private
contractors to hire 30% of skilled and 50% unskilled labor requirements
from the area where the project is being undertaken
Adjudicatory Functions
1. Administrative cases involving violations of licensing rules & regulations
and registration of recruitment and EEnt agencies/entities; and
2. Disciplinary action cases and other special cases w/c are administrative
in character, involving employers, principals, contracting partners and
Filipino migrant workers.
Jurisdiction of POEA
1. all cases w/c are administrative in character, involving or arising out of
violations of rules & regulations relating to licensing & registration of
recruitment and employment agencies/entities; and
2. disciplinary action cases and other special cases w/c are administrative in
character, involving EERS, principals, contracting partners and Filipino
migrant workers
3. NO jurisdiction to enforce foreign judgment (must be brought before the
regular courts). POEA is an administrative (not a court), exercising
adjudicatory or quasi-judicial functions
4. NO jurisdiction over torts
Grounds for Disciplinary Action
1. Commission of a felony punishable by Ph laws or by the laws of the
host country;
2. Drug addiction/possession or trafficking of prohibited drugs;
3. Desertion or abandonment;
4. Drunkenness, esp where the laws of the host country prohibit intoxicating
drinks;
5. Gambling, esp where the laws of the host country prohibits the same;
6. Initiating/joining a strike or work stoppage where thelaws of the host
country prohibit strikes or similar actions;
at 12% per annum, plus the salary for the unexpired portion of their EENT
contract.
Due Process required to terminate employment
Ex: in case of seamen must be given written notice of the charges against
him, and afforded a formal investigation where he can defend himself or thru
a representative before he can be dismissed & disembarked. The EER is
required to furnish him w/ 2 notices: (1) written notice of charge; and (2)
written notice of dismissal
Contracted but not Deployed: Perfected Contract
Death benefits of Seafarers
-
entitled to death and other benefits under w/c ever is higher (foreign law
or Ph law)
entitled to death benefits if death occurs during the term of his contract
of employment, even if death is not work-related
death is caused by
except
where such injury/sickness still requires medical attendance beyond 120 days
but not to exceed 240 days from onset of disability in w/c case benefit for
temporary total disability shall be paid.
In case of differing medical assessment
a.) when a seafarer sustains a work-related illness/injury while on board, his
fitness/unfitness to work shall be determined by the company-designated
physician.
b.) If the physician appointed by the seafarer disagrees w/ the company-
Agencies Given the Duty to promote the welfare & rights of migrant workers:
1. DFA
2. DOLE
3. POEA
4. OWWA Overseas Workers Welfare Administration provides social &
welfare services including insurance coverage, legal assistance, placement
assistance and remittance services to Filipino overseas workers. Under
RA8042, it shall provide the Filipino migrant worker & his faily assistance
in the enforcement of contractual obligs by agencies, entities and/or their
principals;
5. RPM - Re-Placement and Monitoring Center develops livelihood
programs for the returning workers to reintegrate the returning migrant
workers to the Ph society;
6. NLRC tasked w/ the settlement/adjudication of labor disputes
from the POEA. Failure to replenish the same w/in the said pd shall
cause the suspension of the license
Note: POEA has the power to enforce liability under cash & surety bonds.
Art 32: FEES TO BE PAID BY WORKERS
The applicant can be charged w/ fees only after he has obtained EENT
or has actually commenced EENT
Fees paid shall always be covered w/ the approp receipt clearly showing
the amount paid.
POEA has the power to:
1. Suspend/cancel the license; and
2. Order the refund/reimbursement of such illegally collected fees
Prohibition on Charging Fees
1. Placement fees cannot be collected from a hired worker until he has
signed the EENT contract & shall be covered by receipts clearly showing
the amt paid
2. Manning agencies shall not charge any fee from seafarer-applicants for
its recruitment & placement services. All expenses for hiring seamen shall
be shouldered by foreign shipping principals.
3. No other fees/charges, including processing fees shall be imposed against
any worker.
Art 34 & Section 6 RA 8042: PROHIBITED PRACTICES:
It shall be unlawful for any indiv, entity, licensee or holder of authority:
1. To charge greater amt than that specified in the schedule of allowable
fees (illegal exaction);
2. To furnish any false info in relation to recruitment/EENT (false
information);
3. To give any false notice, testimony, etc. or commit any act of
misrepresentation to secure a license or authority (false statements);
4. To induce or attempt to induce a worker to quit his job in lieu of another
Imprisonment Fine
Simple
5 yrs
Economic Sabotage
20 yrs
12-20 yrs
Life
P1-2M
P2-5M
Note: Max penalty if the person illegally recruited is less than 18 y/o or
committed by a non-licensee or non-holder of authority
Absence of receipts evidencing payment, not fatal to prosecutions case for
illegal recruitment as long as the witnesses can positively show through
their respective testimonies that the accused is the one involved in prohibited
recruitment
Liability of Local EEnt agency solidarily liable w/ the foreigh principal for
unpaid salaries of a worker recruited. Before recruiting, the agency is required
to submit a doc containing its power to sue and be sued jointly and solidarily
w/ the principal or foreign-based EER for any of the violations of the
recruitment agreement and the contracts of EEnt
Liability of Company Engaged in Illegal Recruitment may be held as principal,
together his EER, if it is shown that he actively & consciously participated in
illegal recruitment
fine for working w/o or with an expired AEP P10K for every year or a
fraction thereof.
Rule on Nationalized Business
GR: Foreigners may NOT be employed in certain nationalized business.
Anti-Dummy Law 2-A prohibits the EENT of aliens in entities engaged in
business whose exercise or enjoyment is reserved only to Fils or to
corporations or assocs whose capital should be at least 60% Fil-owned
Exceptions:
1. Where the Sec of Justice specifically authorizes the EEnt of technical
personnel;
2. Aliens who are members of the Board of directors of corps in proportion
to their allowable participation in the capital of such entities; and
3. Enterprises registered under the Omnibus Investment Code in case of
technical, supervisory or advisory positions, but for a limited pd.
Art 41. PROHIBITION AGAINST TRANSFER OF EENT
1. Aliens shall not transfer to another job or change his EER w/o prior
approval of the Sec of Labor;
2. Non-resident aliens shall not take up EENT in violation of the provisions
of the Code.
Note: Violations of the abovementioned acts will subj the alien to the
punishment in Art 289 & 290 and to deportation after service of sentence
2. By the apprentice:
days.
Upon complaint filed by Serrano before the Labor Arbiter (LA), the dismissal was
declared illegal.
On appeal, the NLRC modified the LA decision based on the provision of RA
8042.
Serrano filed a Motion for Partial Reconsideration, but this time he questioned
the constitutionality of the last clause in the 5th paragraph of Section 10 of RA
8042.
ISSUES:
1. Whether or not the subject clause violates Section 10, Article III of the
Constitution on non-impairment of contracts;
2. Whether or not the subject clause violate Section 1, Article III of the
Constitution, and Section 18, Article II and Section 3, Article XIII on labor as a
protected sector.
HELD:
On the first issue.
The answer is in the negative. Petitioners claim that the subject clause unduly
interferes with the stipulations in his contract on the term of his employment and
the fixed salary package he will receive is not tenable.
The subject clause may not be declared unconstitutional on the ground that it
impinges on the impairment clause, for the law was enacted in the exercise of
the police power of the State to regulate a business, profession or calling,
particularly the recruitment and deployment of OFWs, with the noble end in view
of ensuring respect for the dignity and well-being of OFWs wherever they may
be employed.
On the second issue.
The answer is in the affirmative.
To Filipino workers, the rights guaranteed under the foregoing constitutional
provisions translate to economic security and parity.
Upon cursory reading, the subject clause appears facially neutral, for it applies to
all OFWs. However, a closer examination reveals that the subject clause has a
discriminatory intent against, and an invidious impact on, OFWs at two levels:
First, OFWs with employment contracts of less than one year vis--vis OFWs
with employment contracts of one year or more;
Second, among OFWs with employment contracts of more than one year; and
Third, OFWs vis--vis local workers with fixed-period employment;
The subject clause singles out one classification of OFWs and burdens it with a
peculiar disadvantage.
Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is
violative of the right of petitioner and other OFWs to equal protection.
The subject clause or for three months for every year of the unexpired term,
whichever is less in the 5th paragraph of Section 10 of Republic Act No. 8042
is DECLARED UNCONSTITUTIONAL.
People of the Philippines (petitioner) v Jamilosa (repondent)
GR No. 169076
Callejo, Sr.,:
FACTS:
have the capacity, authority or license to contract, enlist and deploy or transport
workers for overseas employment, did then and there, willfully, unlawfully and
criminally
recruit,
contract
and
promise
to
deploy,
for
fee
the
herein
According to Bamba, she met the appellant on a bus. She was on her
way to SM North Edsa where she was a company nurse.
Appellant introduced
her
because
her
number
was
appearing
in
appellants
cell
phone
documents. The caller is trying to locate him as he was a swindler. She became
suspicious and told Bamba about the matter. One week before her scheduled
flight, appellant told her he could not meet them because his mother passed
away.
Lastly, Alma Singh, who is also a registered nurse, declared that she first
met the appellant at SM North Edsa when Imelda Bamba introduced the latter to
her. Appellant told her that he is an undercover agent of FBI and he could fix
her US visa. On their next meeting, she gave all the pertinent documents.
Thereafter, she gave P10,000 to the appellant covering half price of her plane
ticket.
They
paged
the
appellant
through
his
beeper
to
set
up
another
appointment but the appellant avoided them as he had many things to do.
The accused Jamilosa testified on direct examination that he never told
Bamba that he could get her a job in USA, the truth being that she wanted to
leave SM as company nurse because she was having a problem thereat. Bamba
called him several times, seeking advices from him. He started courting Bamba
and went out dating until latter became his girlfriend. He met Lagman and Singh
thru Bamba. As complainants seeking advice on how to apply for jobs abroad,
lest he be charged as a recruiter, he made Bamba, Lagman and Singh sign
separate certifications, all to effect that he never recruited them and no money
was involved. Bamba filed an illegal recruitment case against him because they
quarreled and separated.
RTC rendered judgment finding accused guilty beyond reasonable doubt
of illegal recruitment in large scale.
ISSUE: Illegal Recruitment in a large scale?
HELD: Recruitment and placement" refers to any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring workers, and includes
referrals, contract services, promising or advertising for employment, locally or
abroad, whether for profit or not. Provided, That any person or entity which, in
any manner, offers or promises for a fee employment to two or more persons
shall be deemed engaged in recruitment and placement.
Illegal recruitment shall mean any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring, or procuring workers and includes referring, contract
services, promising or advertising for employment abroad, whether for profit or
not, when undertaken by a non-licensee or non-holder of authority. Provided,
That any such non-licensee or non-holder who, in any manner, offers or
promises for a fee employment abroad to two or more persons shall be deemed
so engaged.
To prove illegal recruitment in large scale, the prosecution is burdened to
prove three (3) essential elements, to wit: (1) the person charged undertook a
recruitment activity under Article 13(b) or any prohibited practice under Article 34
of the Labor Code; (2) accused did not have the license or the authority to
lawfully engage in the recruitment and placement of workers; and (3) accused
committed the same against three or more persons individually or as a group.
As gleaned from the collective testimonies of the complaining witnesses which
the trial court and the appellate court found to be credible and deserving of full
probative weight, the prosecution mustered the requisite quantum of evidence to
prove the guilt of accused beyond reasonable doubt for the crime charged.
Indeed, the findings of the trial court, affirmed on appeal by the CA, are
conclusive
on
this
Court
absent
evidence
that
the
tribunals
ignored,
Government employees
corps
ii.
- under the direct supervision of the EER, and assist in the planning,
organizing, staffing, directing controlling, communicating and in making
decisions in attaining the companys set goals & objectives
a. Includes supervisiors (only as regards Art 82)
likewise responsible for the effective & efficient
operation of their respective depts
iii.
c.
b.
iv.
v.
Domestic helpers
vii.
the existence of
The kind of work is not the definitive test of whether the worker
is an EE or not.
Plus: the courts added the existing economic conditions prevailing bet the parties
(like payrolls) in determining the existence of EER-EE Relship.
ELEMENTS OF EE-EER RELSHIP (Four-fold Test)
i.
ii.
iii.
iv.
id card
ii.
vouchers of salaries
iii.
sss
iv.
memorandum
registration
unlawful/ unjust/unfair;
Purpose of
8-hr Labor law not only to safeguard the health & welfare of the
Pre/Postliminary Activities
j.
Waiting Time
k.
l.
Travel Time time spent walking, riding, or traveling to/from place of work
a. Travel from home to work not worktime
when EE receives an
hrs worked
Travel away from home travel that keeps an EE away from home
overnight
hrs worked
they need not leave the boat in order that his rest period not be
counted
leave or may leave at his will the spot where he actually stays
while working, to go somewhere else, whether w/in or outside the
ship
2. where it is less than 60 minutes (but not less than 20minutes) must be
with full pay when:
1. where work is non-manual (does not involve strenuous physical exertion);
2. where the establishment regularly operates not less than 16hrs a day
3. in cases of actual or impending emergencies or there is urgent work to be
performed on machineries, equipment or installations to avoid serious loss
w/c the ER would otherwise suffer;
4. where the work is necessary to perevent serious loss of perishable goods
c.
Note: Meal periods during overtime work is not given to workers performing
OT bcoz OT is usually for a short period
not compensable
Requisites
1. EEs voluntarily agree in writing and waive their OT pay;
2. No diminution in the salary and other fringe benefits of the EEs already
existing;
3. Work is not physically strenuous and they are provided w/ adequate coffee
breaks in the morning & afternoon;
4. Value of benefits is equal to the compensation due them;
5. OT pay will become due and demandable if they are permitted/made to work
beyond 4:30 pm; and
6. The arrangement is of temporary duration.
Note: The 8-hr work period does not include the meal break. EEs may leave
the company premises as long as they return to their posts on time.
Art 86 NIGHT SHIFT DIFFERENTIAL
- at least 10% of his regular wage for each hr of work performed bet 10PM
and 6AM
- given as premium for working at a time for sleep & rest
in addition to the exceptions in Art 82, NSD is n/a to EEs of retail and
service establishments regularly employing 5 employees and below
if work done from 10pm-6am is OT work, then the 10% night shift
differential should be based on the OT rate
commenced an action v PAL in the CIR praying that the latter be ordered to
revise the method of computing the basic daily & hourly rates of its monthlysalaried EEs and necessarily to pay them their accrued salary differentials
PALs Formula:
monthly salary x 12/365 days in a yr = Basic daily rate
basic daily rate/8 Basic hourly rate
Proposed Formula:
Monthly salary x 12/actual working days = BDR
BDR/8 = BHR
- ER may stipulate that EEs monthly salary constitutes payment for all the
days of the month incl rest days & holidays if when converted into its
daily equivalent would still meet minimum wage
legal
need not be
: On rest days & holidays, written authority after office hrs is required for the
EE to be entitled to compensation
working hrs a day, but whether they actually rendered service in excess of 8
hrs
total number of hrs worked per day shall not exceed 12hrs. (Work
performed beyond 12hrs a day or 48hrs a week
OT)
Duration: at least 24 consecutive hrs after every 6 consecutive normal work days
- all establishments & enterprises may operate or open for business on Sundays
& holidays provided that the EEs are given the weekly rest day & the
benefits provided under the law
Who Determines: The ER determines and schedules the weekly rest period subj
to the ff:
1. CBA;
2. Rules & regulations issued by the Sec of Labor; and
3. EEs preference based on religious grounds. (When such preference will
prejudice the business of the ER, and no other remedial measures are
available, the weekly rest pd may be scheduled to meed the EEs choice
for at least 2 days a month
Art 92. WHEN THE ER MAY REQUIRE WORK ON A REST DAY
GR: The ER may not require the EEs to work on a rest day
: Exceptions
1. In cases of urgent work to be performed on the machinery, equipment or
installation;
2. To prevent loss or damage to perishable goods;
3. In case of actual/impending emergencies caused by force majeure to
prevent loss of life and property, or imminent danger to public safety;
4. Where the nature of work requires continuous operations and the stoppage
of work may result in irreparable injury/loss to the ER;
5. In the event of abnormal pressure of work due to special circumstances,
where the ER cannot ordinarily be expected to resort to other measures;
and
6. Under the circumstances analogous to the foregoing as determined by the
Sec of Labor.
Note: The failure to work during an EEs rest day does not justify disciplinary
sanction of outright dismissal, more so when justifiable grounds exist for the
said failure.
Note: When an EE volunteers to work on his rest day under other circumstances,
he may be allowed to do so, provided he expresses such desire in writing
and he is paid the addtl compensation for working on his rest day
Art 93. COMPENSATION FOR REST DAY, SUNDAY OR HOLIDAY WORK
Premium pay or Differential compensation addtl compensation for work
rendered by the EE on days when normally he should not be working such
as special holidays and weekly rest days
Note: This article does not prohibit a CBA stipulation for higher benefits
Formulas to Compute Wages on Holidays
1. For REGULAR HOLIDAYS
a. If it is an EEs regular workday
i. If unworked 100%
ii. If worked
Special Day
Compensable even if
Not compensable if
unworked
conditions
Limited to the list
enumeration
Rate of Addtl
Compensation
Work on a scheduled
rest day
No regular workdays
work performed on
days
30%
30%
50%
Holiday pay a days pay given by law to an EE even if he does not work on
a regular holiday.
- It is limited to the regular/legal holidays listed by law.
- EE should not have been absent w/o pay on the working day preceding
the regular holiday
Note: In addition to the
compensated.
2. Cessation of operation of an enterprise due to business reverses as
authorized by the Sec of Labor
ER
Ch 95. RIGHT TO SERVICE INCENTIVE LEAVE (SIL)
Concept: 5 days leave w/ pay for every EE who has rendered at least 1 yr of
service
1 yr of service service w/in 12 months, whether continuous or broken,
reckoned from the date the EE started working including authorized absences
and paid regular holidays unless the number of working days in the
establishment as a matter of practice/policy is less than 12 months
SIL is N/A to the ff:
1. EEs of the Govt
2. Domestic helpers
3. Managerial EEs
4. Field personnel whose performance is unsupervised or those who are paid
a fixed amt for performing work irrespective of the time consumed in the
performance thereof
5. Those already enjoying the said benefits
6. Those already enjoying vacation leave w/ pay for at least 5 days;
7. Those employed in establishments regularly employing less than 10 EEs
* EEs engaged on task/contract basis or paid purely commission basis are
not automatically exempted from the SEL unless they fall under the
classification of field personnel.
Conversion to Monetary Equivalent
SIL is COMMUTABLE or convertible to cash if not used or exhausted at the end
of the yr
Basis of conversion: the salary rate at the date of commutation
ALSO Entitled to SIL
1. EE illegally dismissed
2. Part-time workers
3. Piece-rate workers:
a. Working inside the premises of ER & thus are under direct
supervision of the ER
entitled
not entitiled
EEs w/ salaries above Min Wage: the difference bet the min wage and the
actual salary received by the EEs cannot be deemed as their 13th month pay
and SIL pay
SIL
VL/SL
Mandatory Art 95
Intended to afford a
economic condition of
as replacement for
Must be demanded in
its opportune time;
silence is waiver
Commutable
Not commutable
except
managerial EEs
Distribution distributed to paid EEs at least once every 2 weeks or 2x a month
at interval of at least 16 days
Rule in case of abolition
- in case the service charge is abolished, the share of the covered EEs
shall be considered integrated in their wages
- the basis of the amt to be integrated shall be the average share of each
EE for the past 12 months immediately preceding the abolition
Pooled Tips
- where an establishment does not collect service charges but has a
practice/policy of pooling tips given voluntarily by its customers, the pooled
tips should be monitored, accounted for and distributed in the same manner
as the service charges
Title 2 WAGES
Ch 1
Art 97. Definitions
Person an individual, partnership, assoc, corp, business trust, legal rep, or any
organized group of persons
Agriculture includes farming in all its branches, and among other things,
includes the cultivation & tillage of soil, dairying, the production, cultivation,
growing & harvesting of any agricultural & horticultural commodities, the
raising of livestock or poultry, and any practices performed by a famer on a
farm as an incident to or in conjunction with such farming operations, but
does not include the manufacturing or processing of sugar, coconuts, abaca,
tobacco, pineapples or other farm products.
Employ includes to suffer or permit to work
Wage paid to any EE; shall mean the renumeration or earnings, however
designated, capable of being expressed in terms of money, whether fixed or
ascertained on a time, task, piece, or commission basis, or other method of
calculating the same, w/c is payable by and ER to an EE under a
written/unwritten contract of ENT for work done or to be done, or for services
rendered and includes the fair and reasonable value, as determined by the
Sec of Labor, of board, lodging, or other facilities customarily furnished by the
ER ro the EE.
retrenchment), separation pay based not only on the basic salary, but
also on the commissions, transpo & emergency living allowances.
Even if commissions were in the form of incentives or encouragement,
still these commissions are direct renumerations for services rendered
w/c contributed to the increase of income of the ER.
The nature of
work of a salesman & the reason for such type of renumeration for
services rendered demonstrate that commissions are part of their wage
or salary. (Some salesmen do not receive any basic salary but
70%
Fair rental value -shall be the reasonable cost of the operation &
maintenance.
Rate of depreciation & depreciated amt those arrived at under good
accounting practices
Good accounting practices shall NOT include accounting practices
w/c have been rejected by the BIR for IT purposes
Depreciation shall include obsolescence
In order that the cost of facilities furnished by the ER may be
charged against an EE, his acceptance of such facilities must be
voluntary
Excludes allowances -
Fair & reasonable value shall NOT include any profit to the ER or to any
person affiliated w/ the ER
WAGES
SALARY
Compensation for
Denotes a higher
manual labor,
degree of ENT, or a
skilled/unskilled, paid at
superior grade of
position or office
Suggestive of a larger
responsible character of
ENT
Compensation of clerks,
FACILITIES
Include articles or
services for the benefit
of the EE or his family
but shall NOT include
tools of the trade or
articles or service
primarily for the benefit
of the ER or necessary
to the conduct of the
SUPPLEMENTS
ERs business
Wage-deductible
Not wage-deductible
Benefit/privilege part of
Benefit/privilege given to
wages,
an extra renumeration
above & over his basic
or ordinary earning or
wage
State Marine Corp & Royal Line, Inc. v Cebu Seamen s Assoc, inc: The
vessel
crew were provided w/ free meals by the ship owners (petitioner), not
1. Proof must be shown that such facilities are customarily furnished by the
trade (ex. Company policy or guideline showing that the meal & lodging
are part of the salary);
2. The provision of deductible facilities must be voluntarily accepted in
writing by the EE;
3. Facilities must be charged at fair & reasonable value.
significantly, the food & lodging or the electricity & water consumed by the
EE were not facilities, but supplements. Hotel workers are required to work
different shifts and are expected to be available at various odd hours, their
ready availability is a necessary matter in the operations of respondents hotel.
gratuity pay is not intended to pay a worker for actual services rendered.
It is a money benefit given to the workers whose purpose is to reward
EEs who have rendered satisfactory & efficient service to the company.
A fair days wage for fair days labor. if there is no work performed by the
EE, there can be no wage or pay
ready to work but was prevented by the mgt or was illegally locked out,
suspended or dismissed.
Equal pay for equal work. EEs working in the PH, if they are performing
Industrial Work
harvests
Lower rate
Higher rate
(Agricultural EEs)
(industrial EEs)
Agricultural Activities
Effects:
1. benefits all wage earners by setting a floor below w/c their pay cannot
fall
2. raises the standard of competition among ERs, since it would protect
the fair-minded ER from the competition of the ER who pays his
workers a wage below subsistence;
3. is a prereq to the adoption of the SSS, w/c requires contributions from
EEs themselves
Ability to pay immaterial
-
and persons in
provided however, that such recommendation shall be given only for the
purpose of making the cooperative viable and upon finding and
the same benefits given to any regular EE such as social security and
health care benefits. BMBEs are also exempt from income tax.
BMBE any business entity or enterprise engaged in the production,
processing or manufacturing of products or commodities, including
agro-processing, trading and services, whose total assets including
those arising from loans but exclusive of the land on w/c the particular
business entitys office, plant and equipment are situated, shall not be
more than P3M. (comprises no less than 90% of Ph ERs)
6. Retail Service Establishments (by virtue of RA 6727/Wage Rationalization
Act)
a.
used to pay its drivers and conductors, aside from their regular salary,
a certain percentage of their daily wage, as allowance for food.
Discontinued by ER upon effectivity of Minimum Wage Law. CIR:
company practice
work only a few days a month averaging 4 hrs a day) a fixed monthly
emergency allowance (which they had been paid as a matter of
practice/verbal agreement)
Full 13
th
illegal.
month pay
away from its responsibility by merely claiming that its acts of giving full
13th month pay to EEs who have not worked for the full year is a
mistake. It has become practice.
2. Negotiated benefits;
3. Wage order compliance;
4. Benefits on reimbursement basis;
5. Reclassification of position;
6. Contingent benefits or conditional bonus; and
7. Productivity incentives.
demandable as a matter of right, the giving of the increase should not only
be by reason of a strict legal (as Wage Order) or contractual oblig (CBA),
but by reason of an act of liberality on the part of the ER.
Benefit on Reimbursement Basis
o
Per diem allowance a daily allowance given for each day when
an EE is away from his home base; intended to cover their cost
of lodging & subsistence when on duty outside of their permanent
station if the EE did not leave his permanent station and spent
nothing for meals & lodging outside thereof, then he is not
entitled to per diem as there is nothing to be reimbursed
Bonus an amt granted & paid to an EE for his industry & loyalty w/c
contributed to the success of the ERs business and made possible the
realization of profits. It is an act of generosity.
- it is not a demandable and enforceable oblig. BUT! It is so when it is
made a part of the wage/salary. In such a case, the latter would be a fixed
amt and the former would be a contingent one dependent upon the realization
of profit
WON bonus forms part of wages: depends on the circs and conditions for its
payment.
a. If it is an addtl compensation w/c the ER promised and agreed to
give w/o any conditions imposed for its payment, such as success of
business or greater production or output, then it is part of the wage.
Where it is not payable to all but only to laborers and only when the
laborer becomes more efficient or more productive, it is only an
inducement for efficiency, a prize therefor, not a part of the wage.
American Wire & Cable Daily Rated EEs Union v AWC Co Inc & the
Ph Education Co. Inc v CIR: even if a bonus is not demandable for not
being part of the salary of the EE, the bonus may nevertheless be
granted on equitable consideration.
-
that he shall be paid a certain salary by the week or some other stated
EEs whose ENT has been terminated may still demand paymt of service
under company policy and of the bonuses. The R is not defeated by a
release & quitclaim
LG Marcos v NLRC & Insular Life: The fact that an EE has signed a
satisfaction receipt for his claims does not necessarily result in the waiver
thereof. The law does not consider as valid any agreement whereby a
worker agrees to receive less compensation than what he is entitled to
Traders Royal Bank v NLRC: The matter of giving the EEs bonuses
over & above their lawful salaries & allowances is entirely dependent on
the profits, if any, realized by the bank from its operations during the past
year. Since the fiscal condition having declined, the bank may not be
forced to distribute bonuses w/c it can no longer afford to pay and, in
effect, be penalized for its past generosity to its EEs.
Productivity Incentives -
adds 1-month pay to the usual 12-month earnings. BUT, does not change
the EEs basic wage. Hence, OT pay, restday pay, SSS contributions &
other roll-up or add-on payroll costs do not increase.
managerial &
supervisory EEs
-
EXCEPTION: ERs who are already paying their EEs a 13 thMP or its
equivalent are not covered by the decree. (the intent of the law was to
grant addtl income to EEs not already rcving the same
th
but only to the unfortunate ones who are not paid a 13 month salary or
what amounts to it, by whatever name called)
its Equivalent shall include Xmas bonus, mid-year bonus, profit-sharing
payments and other cash bonuses amounting to not less than 1/12 of the
basic salary. When an ER pays less than 1/12 of the EEs basic salary, the
ER shall pay the difference. -
shall not include cash & stock dividends, COLAs, & all other allowances
regularly enjoyed by the EEs, as well as nonmonetary benefits (food, free
electricity, etc)
Framanlis Farms Inc. v Minister of Labor: Such benefits in the form of food
or free electricity are not the proper substitute for the 13thMP required by law.
Neither may year-end rewards for loyalty & service be considered in lieu of
13thMP
If the bonus was included in or considered as the equivalent of the 13thMP,
there would be no need for a specific provision of such bonus in the CBA.
But if the CBA did provide for a bonus in graduated amts depending on the
length of service, for example, the intention is clear that the bonus provided
th
The absence
13 MP to the EEs is
immaterial
14th MP basically a bonus, and
-
gratuitous;
mgt prerogative & cannot be forced upon the ER; not legally demandable
Fringe benefits all allowances & monetary benefits w/c are not
considered/integrated as part of the basic salary
2. If they are NOT integral part of the basic salary, then they shld be
excluded.
from the term basic salary because these were paid to them as
commission basis) are entitled to 13thMP on both their fixed & guaranteed
wage and commission
GR: Payments for overload work w/in 8 hrs form part of the basic wage, &
therefore are to be included in the computation of 13thMP.
Overload the load in excess of the normal load of private school teachers as
prescribed by the DECS or the policies, rules & standard of particular private
schools.
Normal load- 8hrs per working day
Overload work
Overtime work
Overtime work
Overload work
Work rendered in
working hrs of 8 in a
a day
day
Proportionate 13thMP
-
an EE who has resigned or was dismissed at any time before the time
for payment of the 13thMP is entitled to this monetary benefit in
unless
Seafarers not covered by 13thMP; because they are contractual, not regular
EEs. Their ENT is governed by their Contract of Enlistment w/c was approved
by the POEA. It does not provide for 13thMP.
Pakyaw
Piece-rate
the job/work to be
performed is in
counted or measured
1. On petition of any interested party, or upon its initiative, the DOLE shall
use all available reps of ERs & workers orgs, to determine whether the
EEs in any industry/enterprise are being compensated in accordance w/
the min wage reqmts
2. The basis for the establishment of rates per pc, output or contract work
shall be the performance of an ordinary worker of min skill/ability.
3. An ordinary worker of min skill/ability is the average worker of the lowest
producing group representing 50% of the total # of EEs engaged in
similar ENT in a particular establishment,
B. As to Rate of Payment
1. Those who are paid piece rates w/c are prescribed in Piece Rate Orders
issued by DOLE
these workers are not covered by the Rule on Hours of Work (no
premium & OT pay)
2. Those who are paid output rates w/c are prescribed by the ER and are
not yet approved by the DOLE.
# of pcs x rate per pc as determined by the ER.
a.) If the resulting amt is
there is
shall not be less than his average daily earnings for the last 7 actual
GR: PD 851 exempts from payment of 13thMP ERs of those who are paid a
fixed amt for performing specific work, irrespective of time consumed in the
perf thereof,
except where the workers are paid on piece-work basis (those who are paid a
standard amt for every pc/unit of work produced that is more/less regularly
replicated, w/o regard to the time spent in producing the same) in w/c case
the ER shall grant the 13thMP to such EEs.
2. Unsupervised employees
1. Paid on piece-work
2. Paid on takay
3. Paid on pakyaw
standards under Sec 8 Rule 7 Book 3, or where such rates have been
fixed by the Sec of Labor
fairly &
reasonably meets the legal MW, based on the output of ave. workers
doing same products under comparable conditions.
If DOLE approves the proposal it becomes the standard (quota). Because
the DOLE-approved standard is presumed fair & reasonable, a piece-rater
who does not reach the quota will earn less than the legal MW and not
w/ the pay formula. In such case the ER need not make up the diff bet
the legal MW and the wage actually earned.
On the other hand, if the outpu-and-pay scheme has not been approved
by DOLE, or does not conform w/ DOLE-issued orders, then the ER may
be required to pay the shortfall bet the actual earning and the prescribed
MW.
The piece-rate pay formula needs DOLEs approval so ast to protect the
workers right to be paid or to earn at least the MW, and at the same
time, to help the ER obtain the corresponding work ouput.
Ch 3 PAYMENT OF WAGES
Art 102. FORMS OF PAYMENT
Proof of Wage payment ER has burden of proof
The IRs require every ER to keep a payroll. Among other things, it must show
the length of time to be paid, the pay rate, the amt actually paid, and so on.
AND the EE should sign the payroll.
ER cannot pay his workers by means of:
1. Promissory notes
2. Vouchers
3. Coupons
4. Tokens
5. Tickets
6. Chits
7. Any obj other than legal tender
Even when expressly requested by the EE.
GR: Payment by legal tender
: Payment by check or money order may be allowed if the same is:
1. Customary on the date of effectivity of the LC;
GR: Wages shall be paid directly to the workers to whom they are due.
: Exceptions
1. Payment through another person
in case the worker has died, ER may pay wages of the deceased worker
to the heirs of the latter w/o the necessity of intestate proceedings.
Procedure
Legal Tender.
must be
paid
When
Where
How
Directly to the EE
no EE-ER Relationship
BUT ER-EE Relship will exist bet the Principal & the Workers where the
contracting arrangement is not legitimate, as in labor-only contracting
Elements of Independent Contractor Job Contracting
responsibility, according to its own manner and method and free from the
control & direction of the principal in all matters connected w/ the
performance of the work except to the results thereof;
contractual EEs entitlement to all labor & health standards, free exercise
of the R to self-org, security of tenure and social & welfare benefits;
b. The contractor does not exercise the right of control over the
performance of the contractual EE (confirming element);
c.
the law does not require both substantial capital and investment in the
form of tools, equipment, machineries, etc.
Right to control refers to the right reserved to the person for whom the service
of the contractual workers are performed, to determine not only the end to be
achieved, but also the manner & means to be used in reaching that end
2. Contracting that terminates the ENT of regular EEs, or reduces their work
hrs, or reduces/splits a bargaining unit, if such contracting out is not
done in GF & not justified by business exigencies;
3. Contracting w/ a Cabo person/s or labor group w/c, in the guise of a
labor org, supplies workers to an ER w/ or w/o any monetary or other
consideration whether in the capacity of an agent of the ER or as an
ostensible independent contractor;
4. Contracting w/ in-house agency;
5. Contracting because of a strike/lockout;
6. Contracting that constitutes ULP under Art 248.
JOB CONTRACTING
LABOR-ONLY
CONTRACTING
The ER/principal is
The ER/principal is
treated as direct ER of
by operation of law, of
comprehensive purpose,
i.e. to prevent a
their wages
circumvention of labor
laws
violation of labor
LC AND ANCILLARY
LAWS
Permissible
Prohibited by law
Presence of substantial
None
capital or investment
Note: The principal shall be SOLIDARILY liable w/ the contractor in the event of
any violation of any provision of the LC, including failure to pay wages. This
will not prevent the principal from claiming reimbursement from the contractor.
Note: The principal shall be deemed the ER of the contractual EE in any of the
ff cases as declared by competent authority:
1. Labor-only contracting; and
2. Contracting arrangement falling w/in the prohibitions
Art 107. INDIRECT ER any person, partnership, assoc or corp w/c not being
n ER, contracts w/ an independent contractor for the perf of any work, task,
job or proj.
4 Features of Legitimate Contracting
result
The Court has already taken judicial notice of the general practice
adopted in several gort & private institutions and industries of hiring
independent contractors to perform special services. These services range
from janitorial, security and even technical or other specific services. While
these services may be considered directly related to the principal business
of the ER, nevertheless, they are not necessary in the conduct of the
principal business of the ER.
A manpower company may be a LOC in one case but an independent
contractor in another.
in a previous case (Guarin v Lipercon), for lacking the substantial capital. But
not so in the present case, where it has been able to establish its characted as
an independent contractor. Aside form hiring its own EEs and paying the workers
their salaries, it also exercised supervision & control over them, w/c is the most
important aspect in determining ER-EE Relshp.
Where the ER fails to require the contractor to post a bond, the ER must
answer for whatever liabilities the contractor may have incurred to his EEs.
This is w/o prejudice to its seeking reimbursement from the contractor for
whatever amt it will have to pay the EEs.
BUT,
2. Labor standards such as SIL, rest days, OT Pay, holiday pay, 13thMP,
& separation pay;
3. SS & welfare benefits;
4. Self-orgs, CB and peaceful concerted action; and
5. Security of tenure.
Certain conditions required expressly stipulated in the ENT Contract
1. Specific description of the job, work or service to be performed by the
contractual EE;
2. The place of work and terms & conditions of ENT, uncluding a statement
of the wage rate applicable to the indiv contractual EE; and
3. The term/duration of ENT, w/c shall be coextensive w/ the contract of the
principal & contractor or w/ the specific phase for w/c the contractual EE
is engaged, as the case may be.
The sub/contractor shall inform the contractual EE of the foregoing terms &
conditions on or before the 1st day of his ENT.
Security of Tenure:
a. in cases of termination of ENT prior to the expiration of the contract bet
the principal
Workers shall enjoy first preference as regards their unpaid wages &
judicial liquidation of the ERs business shall be given first preference &
shall be paid in full before other creditors may establish any claim to
share in the assets of the employer.
Not only unpaid wages, but also other monetary claims to w/c even
3. Claims for death benefits ( Heirs of Aniban) : Art 111 does not limit the