LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
June 19, 2013
So. This is Labor and Social Legislation Review.
The numbering of the Labor Code has been changed
starting from Article 130. Articles 130 and 131 of the Labor
Code is repealed. A new chapter is inserted after Book
Three, Title III, entitled: Chapter V Employment of Night
Workers.
RA 10151 approved on June 21, 2011 but then the IRR just
came out this year. Get the reliable copy of the Kasambahay
Law at the Department of Labor website. Download the
primer. Its free. This is interesting because the employment
of nightwork is only for call center workers or business
process outsourcing workers. Look at:
Article 154 of RA 10151 - Night workers means any
employed person whose work requires performance of a
substantial number of hours of night work which exceeds a
specified limit. This limit shall be fixed by the Secretary of
Labor after consulting the workers representatives/labor
organizations and employers.
Xxx except those employed in agriculture, stock raising,
fishing, maritime transport and inland navigation, during
a period of not less than seven (7) consecutive hours,
including the interval from midnight to five oclock in the
morning, to be determined by the Secretary of Labor and
Employment, after consulting the workers
representatives/labor organizations and employers.
So, all those women working in banana packing
warehouses are not covered but women who are
call center agents are covered.
So my suggestion is to take up labor standard first then
labor relations, that is where most of the changes are.
The bar examinations this year is 80% essay, 20% multiple
choice. I do not know how it will be next year. So how should
you approach this year. This is a privilege time so read,
read, read.
Alright. Today we begin with general principles.
General Principles
Contrary to the common assumption, service rendered for
another is largely unpaid rather than paid. Most of the
service that is rendered to another, labor-rendered, is largely
uncompensated. You think of how many millions of meals
not paid and the laundry or household chores done by
mothers are not compensated, it is classified under
economics as zero-value labor.
If you have a spectrum, to the left are unpaid labor for
another; to the right is paid labor.
Left side:
First, personal, military or civil service It is an exception to
the prohibition against involuntary servitude. You have the
obligation to render compulsory military or civil service but
the State has no obligation to pay you.
Second, convicts that are doing hard labor after they have
been convicted of a crime. (Article 3 Section 8 SubPar 2)
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Third, civic or religious organizations serving the public and
their communities.
Fourth, students who do assignments for their teachers.
Fifth, members of the household doing chores for each
other.
Sixth, parents working for their children under the Family
Code.
Seventh, spouses serving each other under the Family
Code.
Question: Apart from the Labor Code or before the entrance
of the Labor Code, what is the rule if service is rendered to
another and there is no explicit contract as to whether or not
it is compensable?
Perez vs Pomar 2 Phl 682(1903)
Mr. Perez was commissioned by Mr. Pomar, the president of
the Tabacalera Company. At that time, Tabacalera Company
go around Luzon buying tobacco, in the process they have
to go through a lot of checkpoints. At that time, the US
Armed Forces just occupied the Philippines, the officers
manning the the checkpoints are all Americans. Pomar only
knew Spanish so he commissioned Perez to come along
with him to help him get through the checkpoints. There was
no talk of compensation but Pomar proposes to Perez that
he can also do buying as they go along and put it in the
coach. After doing that for 3 months, Perez asked for
compensation; Pomar refused to give compensation.
According to Pomar, there was no talk of compensation,
therefore, compensation is not owing. Perez when to court,
there is yet no Labor Code.
The SC says that if service is rendered to another when
there is no contract as to whether or not compensation is
owing, the rule is if the type of service is one that is normally
compensated, then compensation is owing. The amount of
compensation is the reasonable value of the service
rendered.
Note: The consequences are bad for society if that rule is
not followed. If you do not pay, there is unjust enrichment
that ensues.
Right side:
There are many kinds of services rendered to another that is
not demandable under the Labor Code.
First, independent contractor under Article 1713 of the Civil
Code where the one rendering services is not subject to the
direction of the employer as to the means and methods but
as to the goal.
Art. 1713. By the contract for a piece of work the contractor
binds himself to execute a piece of work for the employer, in
consideration of a certain price or compensation. The
contractor may either employ only his labor or skill, or also
furnish the material.
Labor cases themselves have ruled that there is such a
thing as independent contractor where the one rendering
services is not subject to the direction of the putative
employer as the means and methods but only as the goal.
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
Example: A wedding planner
If he is not paid, he cannot go to the Labor Arbiter
to file a complaint. He or she should go to the
regular courts because he is an independent
contractor.
Second, share or leasehold tenancy (RA 6657)
Third, housemaids rendering personal service to another.
The kasambahay is now incorporated in the Labor Code.
Fourth, homeworkers and pakyaw workers
Fifth, industrial partners under Article 1767 of the Civil Code.
Art. 1767. By the contract of partnership two or more
persons bind themselves to contribute money, property, or
industry to a common fund, with the intention of dividing the
profits among themselves.
Two or more persons may also form a partnership
for the exercise of a profession.
Sixth, agents serving their principal under Article 1868 of the
Civil Code.
Art. 1868. By 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.
Seventh, quasi-contracts under Article 2144 of the Civil
Code.
Article 2144. Whoever voluntarily takes charge of the
agency or management of the business or property of
another, without any power from the latter, is obliged to
continue the same until the termination of the affair and its
incidents, or to require the person concerned to substitute
him, if the owner is in a position to do so. This juridical
relation does not arise in either of these instances:
(1) When the property or business is not neglected or
abandoned;
(2) If in fact the manager has been tacitly authorized by the
owner.
In the first case, the provisions of articles 1317, 1403, No. 1,
and 1404 regarding unauthorized contracts shall govern.
In the second case, the rules on agency in Title X of this
Book shall be applicable. (1888a)
Example: Person leaves behind a business and
somebody else steps into his shoes and takes over
the business. Then, he comes back and takes over
from the one who was running it. There was no
agreement as to compensation and yet such
incident creates a quasi-contract. You have to
compensate the person.
Eight, service rendered to another in an employee-employer
relationship.This is covered by the Labor Code.
Government employees are in the middle. They are
compensated not because there is a contract but
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because there is a law. The law first creates a
position and then the law carries the amount of
compensation. Then he is either appointed or
elected. In government employment, there is no
contract but only appointment. It is neither here and
there.
Why is it important to always put things?
One, there is always a difference in the law
governing these services. You have to know what law.
Second, you have to know the forum to resort to when there
is controversy.Third, is what is required in the interpretation
of the statutes involved. Remember, if it is a labor statute
then you have an additional rule with respect to statutory
construction. It is the interpretation in favor of labor in cases
of doubt. This is not true in other statutes. It is not
interpreted in favor of the employee, the government will go
bankrupt.
Alright, principles.
Before labor was a protected right, labor was and continues
to be, a property right. When you say protected, we refer to
Article 13 section 3, the State shall afford full protection to
labor, local and overseas, organized and unorganized.
Remember that protection is separate and distinct form the
equal protection of the law which is found in Article 3,
Section 1 of the Bill of Rights. The original protection is the
protection to be treated equally before the law. You will be
judged solely merit of your case.
Section 3 Article 13 is a protection which is based on social
justice. This is qualitatively more than that mention in Article
3 Section 1. Social justice is first of all a mandate to the
legislature where the legislature is mandated to pass more
laws in favor of those who have none in life because that is
an instrument to correct the radical defect in the society.
That is the premise of our Constitution.
Who are those who are not and worthy to be given more?
The daily wager, the subsistence farmer, the
working women, and so on. You have this list in the
Constitution. The significance of this list is that the judge can
no longer overturn any law regarding the protection of these
people due to undue classification. Every legislation has
classification. There must be a rational connection between
the classification and the goal that is intended to be
achieved. The classification must be germane to the
objective. It must be based on substantial differences and
then it must be applied equally.
Because the different sectors have been named in the
Constitution, the judiciary is no longer at liberty to invalidate
laws because judicial discretion has been preempted by the
Constitution.
The minimum wage law is being challenged as a law which
impairs the obligations and contracts. Contract obligations
can be impaired in the implementation of social justice.
Before the implementation of the minimum wage law, you
agreed to pay on a daily basis your employee for P300.
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
Then the minimum wage is increased to P320. What has it
done to your contract obligation? It has rendered it obsolete.
Q: Can SSS law be nullified because the state is mandating
the taking of money from Juan (employer) and give it to
Pedro (employee)?
SC said no, that is by virtue of social justice mandated by
the Constitution. That is not undue classification. The
classification omits all these challenges. The reason behind
social justice is the preservation of the larger society
because if this correction is not made and this correction is
highly necessary then our society will explode and our
society will no longer be viable. Social justice, though in the
minimum or medium term, though they benefit particular
sectors, it is really meant to benefit the entire society.
Q: Why is it that there are no widows, orphans, insane in the
Constitution that is supposed to be the object of social
justice?
Those type of people exist whether or not the society is
radically defective or if it is already a self-sufficient society.
In fact, they have long been recognized in the Civil Code,
Napoleonic Code, etc. That is why you study patria
potesta. Is it the same with parens patriae? Parental
authority is only up to 18. Parens patriae is the fundamental
fatherhood by the state. All people have parents but if you
do not have one, then the state steps in. That is not social
justice. In cases of orphans, widows, insanes, etcetera, the
state acts in an exceptional manner.
Social justice is a permanent stand. It begins with legislature
and the implementation of it by a specific governmental
department (Department of Labor). Then it is followed
through by the judicial remedies because it is a more
structural problem of the society embedded in the society. It
is already accepted that social justice is a permanent thrust.
What happened in Europe, a culture of entitlement grew.
There is unemployment insurance, there is universal health
insurance, there is even retirement benefits. So at the time
when the State can no longer support these benefits
because fewer people are working and contributing to there
social security justice and more are collecting from it. The
State is still bound because the guarantees this social
system so the state now borrows money. Sige ug
pangutang hantud dili na makabayad. That is the problem
with security tenure.
Why is an employer held to indefinitely keep him employed
and pay him salary when that obligation is not even imposed
on parents. Pag-abot nimo diese-otso, human na ang
obligasyon sa parent. Pero ngano sa employer-employee
relationship? Contractual gud na inyong relationship. It is not
filial. Ngano man? That is because at one moment, a guy
named Karl Marx said it is not right for man to rent out his
labor for another. That is as bad as a woman selling her
honor for physical services to a man. That is the same as
prostitution.
June 26, 2013
We have decided to review Labor Standards. We will go to
the general principles and principles of social justice.
Remember it cannot be the subject of a mandamus against
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the legislature or the Supreme Court to issue an order to the
legislature to enact laws implementing social justice.
Why is that not possible? Because a co-equal branch of
government, even if it is the Supreme Court, cannot order a
co-equal branch of government.
If certain implementing laws of social justice like the SSS
law, are suddenly repealed by Congress, can Congress
repeal it?
Yes, because it has plenary legislative powers. If they
suddenly repeal it and there are aggrieved parties like those
who have been members of the SSS and who have been
contributing to the SSS consider the rights vested in the
laws that have been repealed? Can they invoke social
justice and they go to court asking the court to order
Congress and the Senate to pass a new social justice law?
A new SSS law? Your pleas will not be heard because not
even the SC can order a co-equal branch of government to
do what is mandated by the Constitution is its business to
do: legislative, supposed to be plenary. The business of
making policy is Congress and Congress alone.
The SC can shut down a law as being unconstitutional
provided that there is an actual controversy. In deciding
cases, it can shut down a law but it must make sure that
there is a case because if there is no case, then it is acting
like Congress. There must be justiciable controversy. That is
the only time the SC can countermand in effect over
Congress but it is in the course of resolving a dispute. Not
only that, it must be in the very lis mota. It means that there
is no other way of resolving the dispute but to meet squarely
the issue of the validity or constitutionality of the law. If the
controversy can be resolved by some other means, then the
SC is not supposed to face the question of constitutionality
or validity of the law. But if the controversy cannot be
decided upon except by passing upon the constitutionality or
validity of the law, that is the only time. Why is that there? In
order to clearly demarcate the functions of the departments
of government.
These things have been adapted historically to limit the
otherwise awesome powers of these different branches.
Thats why the assumption of law, the assumption of the
Constitution is man is not to be trusted. At the very instance
by which law grants powers to certain people, to certain
departmentswhy do I say people or departments?
Because there is one department that is just one person.
Who is that? The executive department. Thats only the
President. Tinuod ka? O. Mao bitaw na ingon alter ego na
tanan ang mga Secretary. Wala man na silay ego, alter lang
man na sila. They reflect the President. Their acts are the
acts of the President. It is the only the President who
executes the law. You are 4th year, you must realize that
because that has ramifications. That is why he is called
Chief Executive. The President is not called The Chief
Executive. He is just called Chief Executive. Why? Because
there is no other executive. There is no other. Thats is not
the same in the SC. Why? Because you call The Chief
Justice. Why? Because there are other Justices! He is only
primus inter pares.
What is primus inter pares? Primus first; inter pares
among equals. He is the first among equals. Pareho na sila
tanan. When they resolve a dispute, the Chief Justice does
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
not have 2 or 3 votes. He still has just one vote. He presides
over the court but he has only 1 vote among the other 14.
So he is called The Chief Justice. The President is called
Chief Executive not The Chief Executive. Dili na pareho where the crown required labor from its subjects. Remember
ug President ka ug Corporation, you are called The Chief
Executive Officer. Daghan man ni sila. VP, Executive VP,
Senior VP, etc.
That is why he has the power of control. What is the
meaning of the power of control? Is that to control the
means and methods and goal to be achieved? Its worse
than that! The President can substitute his own judgment for
that of another. Its only a power of supervision. The power
of supervision is to determine WON the subordinate official
is performing his functions in accordance with law. That is
supervisory power. That is the power of the Secretory of the
DILG over the local executives. He cannot substitute his
power. He can only supervise. But as to the entire executive
branch of government, you remove the local governments
there, the entire executive government, all the cabinet
officials, the President can exercise the power of control to
substitute his own judgment for that of another. That is
power.
Social justice is prominent in the Constitution but it is not the
only thrust in the Constitution. There are others, policies
major policies in the Constitution. And so, if social justice is
perceived to be neglected, what is the remedy of the
general citizenry? The remedy is political, it is not judicial.
You elect Congressmen, you elect Senators and they
implement the social justice laws. You elect people in the
government that will champion the social justice as it is
mandated in the Constitution.
Certain fundamental principles in the Constitution.
Prohibition against involuntary servitude. It used to be in the
Bill of Rights and yet it is no longer in the Bill of Rights.
Where is it? It is now in the Statement of Policies and
Principles, Article II. What is the significance? All the rulings
still hold. You know the Bill of Rights are the rights of the
citizen vis--vis the State and yet if a person succeeds in
enslaving another, that is considered a matter for the State
because the provision says: No involuntary servitude in any
form shall exist ( Note, this is still in Section 18 of Article
III)
We said before that if you are illegally dismissed by your
employer, that is no longer a violation of due process. That
was pronounced by the SC in: Serrano v. NLRC
Due process violation, according to the SC, is when the
State sentences you with a fine or imprisonment or some
other criminal penalty without due process. When the State
violates that, then it is a violation of due process. When an
employer violates that, just dismisses you without following
process mandated by the Labor Code, that is not a violation
of due process because the State has not committed that
but your employer and he is a private individual. So what is
it? It is a violation of the process required by the Labor Code
and yet you will see, even after the Serano ruling, the SC
still says in many of its decisions that he was illegally
dismissed in violation of his Constitutional right to security of
tenure. That is incorrect.
So, if a private person succeeds in enslaving another, is that
the culpability of the State? The SC said yes. The State
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must stop it. That is a violation of his Constitutional rights.
Why? The reason is historical. Slave labor in the Philippines
existed during the Spanish times. There were instances
we were not citizens. We were subjects. Subjects of whom?
Subjects of the crown. What crown? Spanish crown. Why do
you say Spanish crown? Why do you not say King? Queen
diay? Nagpuli-puli man to sila. Usahay KingKing
Ferdinand, unya usahay Queen, Queen Isabelapuli2x.
Whenever involuntary servitude exists, the crown is to be
blamed. Substitute the crown with the State, then it is also
the States responsibility. Involuntary servitude.
That is why it is contained even in the Civil Code. What is
contained in the Civil Code? Personal obligations cannot
be the subject of a suit for specific performance. If it were,
then the State would be an accomplice in involuntary
servitude. Magpatupi ka, bayran na nimo daan imong
barbero. Pag-abot nimo didto, moingon sya, Di nako mo
tupi nimo. Ngano man? Basta dili ko. If you go to court and
obtain an order directed at the barber to cut your hair
according to your agreed specifications, it is the State who is
facilitating the involuntary service of the barber. Dili naman
gawas-non iyang pag tupi sa imong buhok. Its no longer
free, it is the State who is facilitating it. Therefore, you
cannot get the court to issue that order because the State
would be a guilty accomplice in further involuntary servitude.
Moingon ka, is that not unjust? Gibayran na nimo sya, unya
dili sya mo tupi. Gibinlan na nimo ug kwarta ang ginikanan,
nag pista na sila, gikuha nimo ang anak kay dad-on magpa
maid ngadto sa Manila, palitan na nimo ug ticket, niuna ka
na lang sa Manila ug walay niabot didto na anak. Is that not
unjust? The law says what happens is that entire contract is
converted into a money obligation. Utangan na nimo sila.
What happens is, as to the barber, because he refuses to
render you service in cutting your hair, he is now in debt to
you for the amount that you paid. So, you can ask another to
cut your hair at his expense because he is indebted to you
or you can sue him for damages. Damages for what? For
your consequent loss because your hair was not cut. Unsa
may loss nimo? Tingali nag apply ka pagka-extra in an
Indian movie, that requires a tomahawk pareho ni Birdman
unya wala ka madawat kay wala ka tupihi. Damage, loss.
You can sue him for that. But never can you compel him
against his will to render a personal service, that would be
involuntary servitude.
Exceptions to that rule:
1. Those who have been convicted of crime and now
serving sentence may be made to perform hard
labor.
2. The State may compel its citizens to render
compulsory military or personal service, civil
service. Why does it say now in the Constitution
military or civil service? Because there might be a
person of conscience who are pacifists. Dili sila
moapil ug giyera. Di civil service ka lang, ikaw lang
ang tig-recruit sa mga mo giyera. Thats why its
personal military or civil service.
3. A civil servant may be compelled against his or her
will to comply with her duty as a civil servant. This
is provided by the SC. Example, here is a retired
court stenographer. He has retired and he has
received his complete pension so he is no longer a
civil servant but he has left behind so many
stenographic notes that had not been transcribed.
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And its impeding the speedy disposition of those
court cases. Can the judge not order to complete
the transcription of the stenographic notes? He is
already retired. The SC says yes. That is a
governmental function. Governmental function
cannot be impeded. Why? Because it is in function
of governmental duty: Dispensing justice. So he
can be compelled to transcribe those notes under
pain of imprisonment for contempt. Di gani nimo I
transcribe ning notes, didto ka sa prisohan. Di pa
gyud? Pabilin ka sa prisohan hantod imong
ikumpleto pagtranscribe ang stenographic notes.
Remember, imprisonment there is not a penalty. It
is a means to compel the performance of a duty.
Involuntary servitude. The SC has said the
issuance of the Secretary of Labor of a return to
work order is not a violation of the prohibition
against involuntary servitude. Remember, under
the old 263(g), now Art. 269(g): Whenever in the
judgment of the Secretary there exists a labor
dispute arising from an industry indispensable to
the national interest, the Secretary of Labor may
assume jurisdiction over the dispute and issue a
return to work order. The return to work order is
issued under pain of losing your employment status
if you fail to work. Is that not a violation of the
prohibition against involuntary servitude? SC says
no. Why? Because you can still refuse, only you
will have no work. Is that not equivalent to
compulsion to work because you will be taken out
of work? The SC says you refuse to work, therefore
you are granted your wish. You will be out of work.
That is the reason given by the SC. Therefore, it is
not a violation of the prohibition against involuntary
servitude.
All right. The US SC has declared that an accused may be
ordered to provide personal piece of tissue for purposes of
determining DNA. The normal way of getting DNA is to open
your mouth and scrape the inner walls of the mouth then
that is already enough to take samples of DNA. The
objection, believe it or not, in the case of this illegality in Civil
Liberties Union, they are always protagonist against
invasion of the state. The basic objection is that the
procedure of taking samples from the inner walls of the
mouth is unreasonable search and seizure. That was shut
down by the Supreme Court. That is not unreasonable
search and seizure.
I do not know what will be the decision of the SC here. The
decision of the SC here, remember, follow the decision of
the US Supreme Court with respect to an accused can be
compelled to try on shoes and clothes to determine whether
or not he is the perpetrator of the crime. The objection here
is that it is a violation of the right against self-incrimination.
Why will I provide evidence that will convict me? I have the
right against self-incrimination. The SC shut that down
because the freedom against self-incrimination is the
freedom against testimonial evidence on your part. You
cannot be forced to testify against yourself. But you can be
examined physically to determine evidence in court that
includes trying on shoes or size, footprints, measuring their
feet, etc. that is not a violation. There are constitutional
issues like that and bar examiners favor multiple issues. If it
is a question of labor and also a question of political law and
2013-2014 TSN Page 5
you put them together into one question, they like that.
Why? Because it determines your grasp of the basic
principles. It determines whether you can live with principles
that are disparate. Whether you can reconcile them. Now
that the essay questions are back then those kinds of
questions become attractive to the examiners. Remember
that the bar examination now is 80% essay, only 20% is
mcq. If you are completely wrong in the entire mcq and you
are 100% in the essay, you will still get a remarkable mark of
80.
Now in labor standards law, we know of visitorial powers.
Who has visitorial powers?
First of all the POEA has visitorial powers to recruitment,
placement and manpower agencies to whom it gives
licenses or permits to recruit. Again, the bureau of labor
relations and the secretary of labor has visitorial powers
over unions, their offices. The regional director of labor has
visitorial powers for purposes of enforcing health and safety
laws and for purposes of enforcing labor standards laws. He
has visitorial powers in all workplaces.
What does visitorial powers mean?
It means that the authority can enter those premises. That
means he is allowed to enter at anytime of the day or night
provided they are operating, provided they are in business.
They cannot have them opened if they are closed. But if
they are open for business, then these authorities have the
right to enter. Now when they enter, they are not allowed to
search for anything. No. They are allowed let us say for
labor standards inspection, they are allowed to ask for
documents and records that you are required to keep as an
employer.
What are those?
Income records, roster of employees, employee records that
pertain to their status, whether they are probationary, when
they began their probationary period, how they became
regular, when they became regular, etc. They have the right
to take a look at those. If they want they can ask to be given
copies of those records. Because the law makes it
imperative of them to maintain those records. They have the
right to require the presentation of payrolls. How far back the
payrolls? Since the operation of the factory 20 years ago?
No How far back? 3 years. 3 years because that is the
prescriptive period for money claims complaints. 3 years
lang. But the BIR can require the employer to produce
payroll records up to 5 years. Why? Because the NIRC
requires all business establishments to maintain records of
business transactions for 5 years.
Now they are allowed to make interviews with any employee
with or without the presence of the employer. They can even
say, ako ning interbyuhun ning imong usa ka empleyado.
Ayaw dinhi. Palayo. Can the employer say, you are
conducting a hearing. I have to be present? No. This is an
exercise of visitorial power. This is not a hearing. He has a
right to do that. Can the regional director of the Department
of Labor visit a workplace at night and ask for those records
at night? If it is operating at night, the regional director can
do it. He can go to the call centers. He can go there.
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Can the call center give an alibi and say, We cannot
produce the payroll records because our payroll master or
accountant is not here? Can they? No. They cannot. If you
are open, you must have readily available all of these
records that are required to be kept by the Labor Code. Now
what is the consequence if you cannot produce it? The
consequence if you cannot produce it then labor inspector
will make the corresponding report. If the corresponding
report is against you and the corresponding report is
adopted by the Regional Director of Labor, the next thing
that will be issued is the compliance order.
What is that?
It is an order for the employer to make good the level of pay
to pay what is the difference between the actual pay
received by the workers pending the investigation and what
is supposed to be paid under the minimum wage order.
They can compute the time as far back as 3 years. Later on
can the employer say they are producing the payroll
records, baliki ning among bookkeeper. Di-a ra. No. That
can no long be accepted. The only other evidence that can
controvert the compliance order is documentary evidence
not otherwise considered in the course of inspection.
Please remember this because this is not a violation of the
prohibition against unlawful searches or seizure. This is
visitorial power. Kung sirado ang factory unya musulod ang
labor inspector. Dumbulun niya, kuutun niya ang kandado,
sulod siya. Kana that is a violation. But if it is open for
operation and there are operations that are open for 24
hours. What are these? Kanang call centers. Naa bayay
bag-ong law ron. Law involving the conditions of those doing
night work. Abot sila didto ug kalit. Inspection. Are there
sleeping quarters for those being relieved in the middle of
the night? Mu-ingon sila ug No. Wala. You cannot inspect.
There are people sleeping there in the quarters. They can
inspect. Mu-ingon sila na you are violating the right to
privacy you cannot inspect. They can inspect. There are not
enough sleeping accommodations for those who go out.
That is a deficiency in labor standards. The next thing that
will happen is compliance order. You are hereby ordered to
comply. That is not a prohibition of the unlawful searches.
Supposed the Bureau of Labor Relations goes to the office
of the union and asks where is your list of members, where
is your list of officers. We want to find and read your union
minutes. Wa man miy minutes. Before it was very
controversial because many of these things according to the
Labor Code, violations of the old Art. 241: rights and
conditions of membership, can be a ground for cancellation
of union registration. But now these are no longer a ground
for the cancellation of union registration.
What are they?
Bureau of Labor Relations has not yet issued its various
circulars and memoranda. Because the unions are fighting
him. These could be grounds for subjecting the unions to
fines because they are violations of the rights of workers. If
they cannot produce the minutes of the meeting, the way
the voting and the canvass of votes of the election of
officers, etc., they are required by law to keep them in the
office. They cannot produce then they will be subject to fine.
What the law prohibits, the law of Sen. Jinggoy Estrada, is
the unions registration should not be cancelled for any of its
shortcomings. What is the reasoning of this brilliant mind of
2013-2014 TSN Page 6
Estrada? If you cancel the registration of the union, you
penalize everybody. Di man na nila sala. Sala man na sa
mga officers. Kadto sila ang sad-an, silutan, bitayon, they
can be ejected from the union. Not the entire union. That is
according to Jinggoy Estrada. They say there are more laws
coming. More laws on labor because there is another
Estrada in the Senate. JV Ejercito.
The only question if they will be sitting together copying from
each other. We have a senate with a brother and sister and
a brother and brother. We have Cayetano and Cayetano
and Estrada and Ejercito. Sa pagkadaghan natong mga tao
diri sa kalibutan, kana pa dyud ang nahitabo. I am not proud
to be a Filipino. Kana pa. So be careful. These are right for
the bar examinations because these are dual issues. Sayon
ra baya kaayo pagtabok ana. Buntag political law hapon
labor. Malay nimo balik na pud ka sa political law
pagkahapon kay naay nigamot na political law. O dili kaya
buntag pa lang daan naa nay labor law nisulod. So have a
very clear and precise grasp of the political principles and
the labor principles. Be sure.
Now you might be wondering why the housemaids or
domestics are always subject of special laws. Now there is
this law of the Kasambahay. You know that terminology is a
creation of nationalist linguist like the salumpuwet.
Kasambahay needs to have a special law. Why not include
them in the general chapters of the labor standards, create
a minimum wage for them and then lump them together with
all the daily workers? You know why? You might think the
reason is historical. They have existed long before the
factory worker came to being. The working class came to
being in the 19th century with the coming of the Industrial
Revolution. Before that there were already domestics.
Aliping pamumuhay o pambahay? Aliping unsa? Ambot
unsa na na? They have already existed even before the
coming of the Spaniards. You say that since that is historical
they should be separated. That is not the main reason
because historically the craftsmen existed before the
Industrial Revolution and they were covered by the rules of
guilds.
You have a guild. You have a master craftsman. You have
apprentices. The apprentices did not earn until they were
approved by the master as now a craftsman. Sige lang ka
ug trabaho. Pila ka tu-ig ka sige ug trabaho sunod sunod sa
imohang master aron makantigo ka mamuhat ug
lingkuranan, lamesa, magkarpentero. That existed long
before. But that was completely erased and all these
craftsmen were included in the laws of labor standards. Why
is it that you cannot do it with domestics? Why? Do I agree
that they should not be included? Yes. I agree. What is the
reason? Because precisely the workplace is the household
and the household has a privacy that existed long before the
factory. The household is never a workplace pure and
simple. It is an abode. It is the subject that is protected by
known unwarrantless searches and seizures. The
relationship in the household is precisely membership in
household and whoever is included there in the household
is obligated to grant shelter and sustenance. Kanang mga
maid dinha gawas sa sweldo na ibayad pakan-on na nimo
kay kasambahay na sila. Kauban na nimo sila sa balay.
Magpakaon man gani ka ug iring ug iro ang maid na hinuon.
Part of your obligation is to feed them. Naglagot ka nila
makaingon ba ka na absent sa ka sa pani-udto kay buang-
buang kang maid-a ka. Di na mahimo. Pareho lang na sa
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
imohang anak. Mao gani na gitawag na kasambahay. Mao
dili na maapil diri sa labor standards.
Can the household be subject of visitorial powers of the
Department of Labor of labor standards?
You cannot. Mga labor inspector adto didto tan-awon kung
ang mga maid insakto ba ang sweldo. Binuang. Unsaon
nimo pagsulod nga balay man na. Di man na workplace.
You see the reason? You should have clear reasons so you
have clear idea about the labor code and the constitution.
There are now rules. I am still not in the agreement with
putting minimum wage. It should have been clear in the
Kasambahay law that other benefits given to maids should
be given as part of wage. Naa may mga maids na dili stay-in
but they are still part in the nomenclature of maids. Why?
Naa man gihapon sila lugar dira. Kung dili sila gusto muuli
sa ilaha ana sila matulog sa inyoha kay kapuyan sila o
grabe ang ulan. Mustay man dyud sila. You are obligated.
Sometimes the head of the household extends a benefit not
normally extended. Mu-ana siya na kanang
kinamaguwangan nimo na anak pa-eskwelahun nako. Ang
uban pa kay mahuman ug college. Is that not counted as
part of wage? The law does not give such leeway and yet
the benefits could be more. Is that not the reasoning in the
labor code when members of the family dependent on each
other for support are removed from the minimum wage? If a
son is working for a father and does not receive the
minimum wage and yet he is dependent on the father for
support, he is not counted under labor standards because
he might be receiving more by way of other benefits than
what the law prescribes by way of wages. Thats why they
are excepted under Article 80. Why is that allowed when it
comes to members of the family dependent on each other
for support? But not allowed when it comes to domestics?
Too brilliant for Jinggoy Estrada.
All right. I would just like to point out several features in er-
ee relations. In er-ee relations, there is a question as to
whether or not er-ee relations is a question of fact or
whether or not it is a question of law. There are decisions by
the SC that say er-ee relations is a question of fact. Each
set of facts in each case is peculiar to itself that must be
examined against the requirements of the existence of er-ee
relation.
In Biama vs. Alagadan quoted in the case of LVN vs.
Philippine Musicians Guild, the SC said there are 4 criteria
for the existence of er-ee relationship:
1. Selection and hiring;
2. Payment of wages;
3. Power to dismiss;
4. Power of control- control as to the means and
methods used by the employee not just as to the
ends or goals to be achieved but as to the precise
mode or method to achieve that end.
SC says of all the requisites, it is the power of control that is
the controlling test. So you have to examine the facts of
each case. In LVN vs. Phil Musicians Guild, the first 3
criteria were not complied with because the one who did the
selection and hiring was not LVN. The one paying the wages
was not LVM. The one who dismissed these musicians if did
not comply was not LVN. It was the musical director who
was an independent contractor engaged by LVN to provide
2013-2014 TSN Page 7
music for a particular movie. So you would think, 3 out of 4
wala na. Daog na ang Miami Heat. If it was a series 3 ang
daog 1 ang pildi, kinsa man ang daog? Kadtong daog ug
tulo o kadtong usa? Why because the power of control test
is the dominant test. It is the determining test. Thats why
you have to examine the facts.
Then the SC says in other cases, the issue of er-ee
relationship is a question of law regardless of the facts of the
case whether or not it complies with all 4 or complies with
none of the 4 if the law says so, it is er-ee relationship. How
can you reconcile? If there is only one putative employer,
the question of er-ee relationship is a question of fact.
Examine the peculiarities of the factual consideration of the
case. If you are involved in contracting and subcontracting
when there is an indirect employer, there is a contractor, and
there are employees of the contractor seconded with the
indirect employer. The relationship is more complex. Then it
is a question of law. Er-ee relationship becomes a question
of law.
Labor only contracting. If the contractor does not have
sufficient capital or investment in equipment in office and he
is made to perform activities directly related to the business
of the indirect employer. Then there is only one employer.
Who is the employer? The indirect employer. The contractor
is cancelled out. He is not an employer. It becomes a
question of law. I hate to say if this is applied at all.
Actually there are few controversies when it comes to
software subcontracting contracts because they are just
very rare features. If you have a contractor for installation for
a particular software that a company needs. Let us say the
company wants to install Oracle database. The application
is SAT-German Split. It is installed. The installer/contractor
does not have any equipment. Unsa ba iyang equipment?
Kinahanglan ba sya ug laptop? Di man na laptop.
Mainframe man na. Madala ban a ang mainframe? Ang
mainframe kay ang mainframe man sa employer. Naa siyay
mga tauhan. Naa siyay systems guy, applications guy,
financial application, production application, etc. Muta-od na
sila dinha. Mu-abot na sila, unsa man ilang dad-on? Usahay
mudala sila ug sleeping bag. Usahay dili masulbad matulog
man na sila dinha.
Why are they contracted? Because Oracle charges $300/hr
for an upgrade or an installation. Pila man ang kubrahon
aning mga tawhana? $90 lng. 1/3. Ngano manguha man sila
ani? Karaan na silang workers sa Oracle. Nang-resign. Nag-
adventure. Nangahoy sa ilahang kaugalingon. Now if you
measure it according to the law, right then and there igo na
siya. Way investment/equipment, no office. Unsa man ilang
office na internet/email lang ang ilang office. And they are
installing something which is directly related to the work or
the business of the employer. What is the work/business of
the employer? Social network siya. Tanan mga bul-anon
magtagbo sa iyahang website. Kailangan niya ug bag-ong
website ug database kay ang kalibutan nag-awas2 na ug
mga bul-anon. Naa sa Hawaii, America, Norway, Finland.
Magtagbo sila dira. Diba that makes the contractor a labor-
only contractor? You apply the law. But if you apply the law
to software installers/contractors, many of them will be
outlawed. In fact many of them are in fact not registered in
the Department of Labor. If you are a contractor for
manpower you must be registered. If you are not registered,
according to the SC, it is a presumption that you are a labor
only contractor. If you are not registered unless you can
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
provide a good reason why you are not registered. Mu-ingon
ka national security contractor unya dili ka registered. Mao
na ang nahitabo kay Edward Snowden. Tan-awa nang
tawhana na dropout sa high school. Pila iyang sweldo sa
subcontractor? Pila? You are not reading? US$200,000 a
year. Dropout but he developed proficiency in software. He
has very large database. Let us call it a night.
July 10, 2013
Sorry for I have missed the class because of the bar review.
This is the last week of the bar reviews that I have to teach.
I hope you have gotten the correct, the latest version of the
Labor Code. You should have at least the latest version so
that you have the correct numbering. After Article 130, the
numbering changes because the new legislations were
added. Big chops(?) of law have been added. Like the night
workers law, big chop? , Then, the Kasambahay Not to
mention the amendment in 225 which added new provisions
in the Bk V of the Labor Code. Otherwise, you will be
quoting or you will be referring to the old law, it might not be
accurate. If you do not want to buy, and I can understand
why, download it from the website. Download it from Chan,
or download it from the Supreme Court, or Department of
Labor. That should be the least expensive way of doing it.
So, alright. I will now jump to the employer-employee (ER-
EE) relations cases. I will just pick a few cases that I like, the
ER-EE requisites and how it stands.
Now, the LVN vs Phil Musicians Guild on SCRA 132 (1961
case), this is a landmark ruling not because it enumerates
the 4 requisites of the ER-EE relationship. Because the
original case that enumerates the requisites is the case of
Viana vs. Al-Lagadan, a much earlier case in the 1950s.
Now, where did these 4 requisites originate? It originated
from the US Supreme Court. Actually, its central rulings in
the Supreme Court. Why is that? Because our laws, our
labor laws, are actually copies of US laws and
jurisprudence. Our labor standards laws are copies of the
Fair Labor Standards Act of the United States.
Now, that has been enacted because of the Interstate
Commerce Act. In the Constitution of the US, there is federal
jurisdiction in commercial laws, when interstate commerce is
involved. Most employers have interstate dealings. Once
they are registered in a federal institution, then you have
interstate commerce right away because you are dealing
with an institution that is headquartered in Washington DC.
And immediately, this all-embracing clause interstate
commerce puts you under the federal laws of labor. Fair
Labor Standards Act - that is the basis for our labor
standards laws.
Now, just to refresh your memory, the 4 elements of ER-EE
relationship are: 1) selection and hiring; 2) payment of
wages; 3) power to dismiss; and then 4) the power to
control.
LVN case is a landmark case because despite the non-
compliance of the first 3, because of the prominence of the
4th element, the SC declared that there was ER-EE
relationship between the musicians who provided music to
the films of LVN despite the fact that it was not LVN who
2013-2014 TSN Page 8
hired the musicians, who pays their wages and who has the
power to dismiss the musicians. So that is why the ruling in
LVN case established the prominence of the control test. If
the putative employer controls the methods, the manner, the
means by which the employee achieves the goal that is set
before him, then there is ER-EE relationship despite
whatever deficiencies there might be in the first 3 requisites.
Now, the determination of this is a question of fact. That is
why the SC says that ER-EE relationship is basically a
question of fact. You have to examine the peculiar
circumstances of the case at hand as to whether or not
there has been selection and hiring.
Now, of all these 4 elements, selection and hiring is the
easiest to prove. Why? Because it is implied once a person
is suffered or permitted to work. If somebody works under
your control, under your supervision, it is very difficult for
you to deny - that he is not your employee because you did
not choose him/her. That has been the ruling of the court in
many of these contracts of contracting cases.
California Manufacturing vs NLRC
there is - special offer girls. Kanang mag suroy-suroy, bug-
at gyud kaayo hantod ang paglakaw nila mura na silag
mahagbong na hapit na matumba...house to house. Procter
& Gamble said -- we did not choose them. We just hired an
agency and they worked there, they trained there, we just
supply the goods that they peddle house to house. They
are under this provision of their own agencies supervisors.
The agencys supervisors are given targets for these
special offers. These supervisors are those who are trained
by Procter & Gamble. Naa tay promo, unsa may promo
nato? Ay, kani atong ibaligya
The ruling in California is that they are employees of Procter
and Gamble. They are not employees of the agency that
was contracted by Procter. Why? Because the SC began to
use what under the old Article 279, which now is 293 or
rather 294 - regular and casual employees. That is what the
SC used.
Id like to point that out because this is prominent. What
measurement should the SC used under the law? Is it 294
or the measurement in 106?
Look at the measurement in 106. There is labor-only
contracting where the persons supplying workers to an
employer does not have substantial capital or investment in
the form of tools, equipment, machineries, work premises,
among others, and the workers recruited and placed by
such person(this is the measure) are performing
activities which are directly related to the principal
business of such employer. That is the measure
supposed to be. Then, there is labor-only contracting, then
the contractor is cancelled out but the SC does not use that.
What does the SC use? It uses 294 - To perform activities
which are usually necessary or desirable in the usual
business or trade of the employer.
What is the purpose and business of Procter & Gamble?
Manufacture personal care products, detergents and other
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
personal hygiene or cleaning products. They are supposed
to be the manufacturers.
Now, how about selling those products? How is that related
to the business? It is implied. It is part and parcel of their
purpose to manufacture. Why? Because if it is not, what is
the use of manufacturing? Unsa man na, mamuhat sila ana
human ipanghatag nila? So, the selling is directly related to
their business of making.
Now, what was their argument in California? We are not
selling. Selling is usual and necessary to our practice of
manufacturing. We admit selling is, but promoting is
specialized.
Special offer is promoting, drawing up interest, creating
market share That is not a forever activity. Once its
properly established, then it is sold because there is already
a demand. Promotion is only temporary. It happens only
when the product is new. So therefore, it is not directly
related following 106.
But the SC did not accept the argument of Procter &
Gamble. The SC said it is usual and necessary to your trade
or business. There are so many kinds of detergents for
washing clothes. If you do not make a promo, you will lose
market share. You are always making promos. So it is now
usual and necessary to your trade or business.
Ug wa kay promo, wa nay mupalit nimo. Cebu Pacific, kung
mamaligya silag ticket na 1 peso ra ang plete, namaligya ba
sila ana or nag promo? Mao man na ilang rason nganong
contracted out nang ilang naa dinha sa sales nila, opisina
sa airport. Is selling passenger seats for 1 peso a sale or a
promo? Ug sale na, gituyo diay nimo na alkanse ka? Piso ra
imong bayad? Pila imo makuha ana? That is what the
Supreme Court said. Selling the product embraces
making promos, special offer and it is usual and
necessary to your trade and business.
Therefore, those promo girls are regular employees. The
manpower agency that supplied them is cancelled out
because that agency is a labor-only contracting agency.
Now, as you can see, the issue there is no longer factual. It
has become a legal issue. When you have two provisions
screaming to be applied to the same set of facts, the
determination as to what particular provision resolves the
controversy is the legal question. So the question now is
this: Is the issue of ER-EE relation a factual issue or a legal
issue? The only way to resolve it is if there is only one
putative employee, if contracting or subcontracting is not
involved, then the issue of whether or not there is an ER-EE
relationship, that is a factual issue. If there is contracting or
subcontracting, the issue as to whether or not there is an
ER-EE relationship, that is a legal issue.
So, Issues to determine whether there are ER-EE
relationship or independent salespersons when the job is
selling More accurately, when what is involved is peddling.
What is the difference between peddling and selling? What
is the difference between a peddler and a salesperson? Di
na ta mahimog salesman kay ingnon ta unyag gender
ignorance Salesperon. Alright. Peddler. Unsa diay
diperensya sa duha?
2013-2014 TSN Page 9
From decided cases, a peddler carries with him that
which he sells. Ma green mango ba na na iya nang
panitan, ma silhig or hanger, o diba pagkaon kutchinta,
palitaw, kalamay unsa pa iya gidala, ice drop ba na, na
iya gibaligya, naa gani iya gidala, peddler na sya. Peddler.
And to be a peddler, you are required to have a peddling
permit from the city. You need effected permit. First, on your
vehicle where you deposit your things. Ah kay wa may
things, usa ra ka bamboo dinha na gabitay dira na taho man
na gibaligya nimo, the favorite food of pregnant mothers
naa ba nay license gihapon? Naa gihapon na sa city
covered na. Peddlers license.
Salesman ka? Do you need a salesman license? Kana
imong gidala, portfolio ba or bag ba or unsa diha, knapsack
ba sige ra man kag kuha order ana unya lain na may
mudeliver To have a clear understanding ha, there is a
difference between salespersons and peddlers. Nagtulod ka
og bicycle ah unsa na, popsicle cart. Nagasakay ka
anang bisikleta na na nay Selecta ice cream. Unsa man ka?
Peddler ka. Gitagaan ka ug sales invoice, mao ra na imo
dala, mangadto ka sa tindahan, Maam, pila man ka cases
imong kwaon? Unsa tong ilimnora, dong? Sparkle maam,
Sparkle. Unsa man ng Sparkle? Who has drunk Sparkle
here? Ha? Wala mo gainom anang Sparkle? Ang ginainom
ninyo kay Sprite, dili Sparkle Ang Sparkle is one level
below Sprite. Sa cola, naay RC cola. Sa Sprite, naay
Sparkle. Naa dinha manguha ka og order, lain na nang
mudeliver dinha sa Sparkle. Kana na nang man de hukas,
na.. tricycle dinha, unya tan awon jud nimo maayo kay kung
malipat ka, kwaan na nag usa ka botelya, giinom na na
niya You go around taking orders, you are a salesperson.
If youre just a salesperson, the issue revolves around the
working hours, the kind of pay that you receive, are you
given transportation allowance If you are not given
anything, you are given commission, dili ka employee. If you
are not obliged to sell just Sparkle, mahimo sad nga
mubaligya kag lain dinha, nag sideline sad kag imo ba,
sunod nimo gibaliya kay uling, mutan aw sa imo
mangutana pila ka kilo na uling? Unsa man na? bagol o
kahoy?
What does that show? If you can sell other things besides
Sparkle? It means that you are an independent salesman
because you are not bound to sell just your putative
employers products. If you have no requirement with the
employer at the end of the day, that means that your time is
yours. But, if you are a peddler, the issue becomes who
owns the vehicle that you are operating. Is it you?
Now, the question is, are you obliged to sell at a given price
fixed by your putative employer? Are you limited to particular
territory designated by your employer? If you are, then you
are his employee. If you cannot determine your own price, it
is fixed by you, if the particular brands that you sell cannot
be of your own choice, then you are exclusively his
employee. Those are the indices. Kung dili mahalin, imo
rang gibaligya nimo, mauli nimo ngadto sa employer as long
as you account for it, then you are an employee. Those are
the indices of being an employee. Peddler ha, lain ug mga
index sa peddler. Lain sad ang sa salespersons. Pay
attention to that when you look at the specific facts of the
case. Because those are the earmarks of the existence or
non-existence of ER-EE relationship.
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
Alright. We talk about hiring people to do house
improvements or house construction. You are a private
individual, you want to build a house. Naa kay yuta so you
have to construct the house. You hire a master carpenter
who has been experienced for how many years constructing
houses. Unsay degree ana niya? Wa, grade school ra na
siya kutob. Wa na siya katungtung ug Engineering or
Architecture. Wa na siya. Grade school ra na. Pero di
kabalo mubasa ug plano. Imo siyang gi hire. Naa siyay
kaugalingong tao naa siyay panday, naa siyay mason, naa
siyay electrician, naa siyay plumber, tanan, naa siya
question: Kana sila, are they your employees or his
employees?
Now, if you are engaged in the business of so-called build
and sell, kadungog na mo ana? Palit siyag yuta, patukuran
niyag balay, ibaligya niya Asa man siya mag advertise(?)
Sulit.com.ph! >>> Kinahanglan kag tuxedo, Sulit.
Kinahanglan kag second-hand, third-hand iPhones, Sulit.
Kinahanglan kag Multi-cab, Sulit. Sulit lang. Is he your
employee or is he not? What is the clear indication that he is
not your employee? That he is just an independent
contractor. The clearest indication, according to decided
cases, is if he supplies not entirely labor only, if he supplies
some of the materials, clearly, he is no longer an employee.
Independent na na. That is the ruling in the case of Cabe vs
Tumang (1985 case).
Now, if you are engaged in build and sell, chances are these
people become your legal employees. Why? Because they
are doing an activity which is usual and necessary to your
trade or business. And that again is your ruling in Caro vs
Rilloraza. Remember? Caro is in-charge of maintaining the
properties that are owned by his wife that were for rent,
commercial residential and he hired carpenters the SC
says the carpenters are regular because what theyre doing
is usual and necessary to your trade or business.
If you are engaged in real property business, part of your
business, a necessary part and parcel of your business is to
maintain those real property premises in habitable condition.
So, you must have carpenters, you must have construction
workers. Now, suwayi paabang usa ka door dinha, diba ang
number 1 kinahangalan diay nimo kay planner. Complain
na giabang, wala na dili na ma flush ang kasilyas, ngano
man? Gibutangan man og jolen sa imong anak. Ang gripo
di na muagas.. naa na may buhok sa sink. Pasak-an na
sad nimo og karpentero. Unya buak man ang samin, ngano
man? Gilabayan mag bato sa mga bata dinha sa gawas
ilisdan na sad nimo. Mao nay problema sa mga
mapaabang(?) Carpentry, plumbing all these
construction works are usual and necessary to your trade or
business. They become your employees.
Now, with respect to construction, there is a memorandum
by the Department of Labor. As to the construction industry,
this is the guidance coming from the DOLE Bureau of
Working Standards.
Number 1, there are 2 kinds of workers:
First, Project workers construction workers that are hired
in relation to a specific project and only for the duration of
that project. These workers are not regular workers. They
are casual workers in the sense that their tenure is co-
2013-2014 TSN Page 10
extensive with the tenure of the project and to the activity for
which they have been engaged.
Second, there are so-called Pool Workers. In other words,
these are workers that were hired with no relation to an
existing project. They are the core needed to keep the
projects moving. Take note, both are engaged to perform
activities that are usual and necessary to the trade or
business of the employer. Why? Because the employer is in
the construction business and yet one is regular, the other is
not regular is only casual, is project. But the project
worker must be informed at the inception of the engagement
of the duration of the project. And again, the project, he must
be reported with the DOLE that a project has ended.
Following that, then you cannot prove that they are project
employeesIf those two are not there, you cannot prove.
Now, the trouble is the majority of workers of a construction
company are project workers. Time and again, the argument
has been used precisely because they are in construction
business and precisely because a constructor works on a
project business. Does that not mean even the project
workers regular after the passage of multiple projects?
Human, kung construction contractual ka, may project man
jud ka, that is usual and necessary to your trade to have
projects. Kung naa kay tao mag balhin-balhin na og projects
hantod na maniguwang na siya, gi pasa-pasa siya sa kada
project, does that not mean that by virtue of that moving, he
is in fact regular?
That is the issue and the SC has said, that issue has been
forestalled by the memorandum of the DOLE. The
memorandum says these people are project workers
because of the precise nature of the industry. So using the
same argument, the conclusion of the DOLE is opposite the
conclusion of labor.
Because now many of these construction workers are
unionized. That is the issue that they raised. They will ask
the question You look for a construction company that is
not on a project basis. If you can find one then that is the
true construction company. Not all of us are on project basis.
They are called project workers who are usual and
necessary to the trade and business of construction. And
yet, that provision is pre-empted by the DOLE.
Alright.
Employee-employer relationship as distinguished from
the contract of agency
SC said that the common denominator between the 2
contracts is that servcie is rendered to others.
Whereas in agency, the services are rendered in pursuit of
representation or for the purpose of representation, in the
employee-employer relationship, the servcie is rendered to
further the enterprise of the employer, there is no
representation.
The key difference is that the contract of agency involves
servcies that are preparatory for succeeding contracts
whereas in an EE-ER relationship, the services do not
prepare future contracts. These are rendered to further the
enterprise of the employer.
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
Employee-employer relationship as distinguished from
Agricultural Tenancy
Delos Reyes vs Espineli
We are here primarily interested in the basic differences
between a farm employer-farm worker relationship and an
agricultural sharehold tenancy relationship. Both, of course,
are leases, but there the similarity ends. In the former, the
lease is one of labor, with the agricultural laborer as the
lessor of his services, and the farm employer as the lessee
thereof. In the latter, it is the landowner who is the lessor,
and the sharehold tenant is the lessee of agricultural land.
As lessee he has possession of the leased premises.
But the relationship is more than a mere lease. It is a special
kind of lease, the law referring to it as a "joint undertaking."
For this reason, not only the tenancy laws are applicable,
but also, in a suppletory way, the law on leases, the customs
of the place and the civil code provisions on partnership.
The share tenant works for that joint venture. The
agricultural laborer works for the farm employer, and for his
labor he receives a salary or wage, regardless of whether
the employer makes a profit. On the other hand, the share
tenant participates in the agricultural produce. His share is
necessarily dependent on the amount of the harvest.
As to possession
In Agricultural tenancy, there is a recognized legal right of
possession at least to the whole lot. This right is separate
and distinct from the right of the tenant to continue his work
or not.
In fact if the government takes the land for other use, it is
not the only owner that is compensated but also the tenant.
The tenant has to be paid a disturbance fee.
So how about the farm worker, is he granted the right of
possession?
No, sometimes he is granted with additional benefit to stay,
an extra benefit. In tenancy, that is a requirement. Tenant
has the right to stay in the agricultural land. Buhat xa ug
balay, naay baboy naay manok dira, does the owner of the
land have the right to the share of pigs and chickens? No.
Suppose there are plants around the homeland, camote
planted sa likod, root crops ba. That is the savings acocunt
of the subsistence farmer sa panahon na lisod na walay
mutubong humay or mais mao na ang lugitun aron na a kay
malung-ag. Does he have to give a share to the owner of
the land? No. That is his. That comes with the right of
possession.
As to labor
The labor involved in ER relationship is the labor of the
employee and the employee alone. That is his obligation to
render to his employer.
With respect to tenants, all the labor necessary for
production is the responsibility of the tenants which means
that his entire family may be needed to render services.
Mao na kanang magharvest apil mga anak, asawa, lola,
lolo, tanan. So not just the labor of the tenant but his entire
family, as long as it is required for agricultural production.
2013-2014 TSN Page 11
As to compensation
Compensation in ER relationship is fixed and must be given
within intervals of 2 weeks in no case longer than 16 days.
The compensation of tenant is conditional to the existence
of the harvest, on how large the harvest is. He is then given
his share. If there is no harvest, then there is no
compensation.
As to control
In ER relationship, the farm owner has complete control of
the means and method. They can tell the farm worker
karong adlawa soil preparation ta sunod simena, tanom na
sunod weeding.....
In tenancy, the tenant decides when to plant, how much to
plant, how to take care and when to harvest, it is the tenant
who has complete control on the agricultural production
process.
So what kind of control does the landowner exercises:
Exceptional intervention control or veto power he can
stop the tenant if he does something which is not unvirsally
acceptable as agricultural practice in that particular area.
For example, if tenant does away with rice production
because he wants to plant orchids, the owner can say no to
orchids.
So tenancy vis-a-viz employer-employee relationship:points
of comparison
1. As to labor
2. As to possession
3. As to compensation
4. As to control
Why is it important for us to know the difference? Because if
there is a dispute, you do not go to the Labor Arbiter but to
DAR. Kung gusto ka file ka sa duha sa musurvive lang...
mahimo mana, naa lang muatrass ana pero sa bar ayaw
ingna na ifile ang duha.
Let us now begin with labor standards
It begins with Article 82
Article 82. Coverage. The provisions of this Title shall apply
to employees in all establishments and undertakings
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 workers who are paid by results as
determined by the Secretary of Labor in appropriate
regulations.
As used herein, "managerial employees" 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.
"Field personnel" shall refer to non-agricultural employees
who regularly perform their duties away from the principal
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
place of business or branch office of the employer and
whose actual hours of work in the field cannot be
determined with reasonable certainty.
After you have made the decision that this is EE-ER
relationship and this is not agency, government, tenancy,
you make another filter using Article 82 because these are,
except for one, all exempted.
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 workers who are paid
by results. It is true that there is an EE-ER relationship but
they are not covered by labor standards like minimum wage,
hours of work, rest period and etc.
Government Employee
If it is national or local government employees, then clearly
they are not included but if they are employed in the
Government Owned and Controlled Corporations, the so
called charter test must be applied.
If the GOCC has original charter, then it is clearly
government. If it has no charter even if it is owned and
controlled by the governemnt, it is covered by the labor code
and the employees are covered by the regular procedure of
labor justice. So. The Charter test
What do you have to know about the Charter Test?
If it is a corporation, organized on or after 1973, the SC said
that the charter test applies. Before that, the Charter Test
does not apply.
Now. If it is a corporation that has been in existence for
many years even before 1973 and it has an original charter
being a creation of law, does that mean that it is
government? As a General Rule, Yes but there are
exceptions that you have to take note:
1. Philippine National Red Cross Gordon Case
2. Philippine Federation for Veterans
3. Philippine Society for the prevention of cruelty to
animals
These are exceptions to the rule, even if they have original
charters, they have been declared as private corporations.
Managerial employees
I would like to point out that Managerial employees basic
definition in labor standrads is of two kinds.
a. Those who
a. manage a particular department of the
establishment;
b. lay down policies;
c. effectively recommends the hiring, firing,
disciplining, promoting and demoting of
rank and file employees
2013-2014 TSN Page 12
So that kind of definition includes supervisors. Managers in
labor standards not only include managerial employees
proper but also supervisors which is not true in labor
relations. In labor relations, it only covers managerial
employees proper excluding supervisors.
b. Members fo the managerial staff. They are
managerial employees under Article 82. Most of
these members deal with managerial secrets and
matters. They assist managers to peform their
functions and therefore, they are not covered by
labor standards provision. Their functions and work
time are not the same as rank and file employees,
their compenation are higher, they are not paid for
their time but for their special qualifications and for
the results,
Example:
Cost accountant they just work by themselves with a
computer all day.
Are they managing other people? No. Do they lay down
policies? No. Do they hire, dismiss or discipline other
employees? No. Do they recommend the dismissal or
hiring? No
What do they do? They are doing the costing needed in an
enterprise.
There is a very interesting case involving a cost accountant,
a 2012 case. She was given the privilege once if she goes
overtime for more than 3 hours, to obtain free meals
reimbursable with the management. She was given 150
pesos limit per meal. It was discovered that at certain times
she would bring her niece when she would work over time.
She would feed the niece using the 150 meal. Eventually,
she was fired. But i think there was another reason why she
was fired.
Labor Arbiter upheld the ground. NLRC upheld when it came
to CA. CA also upheld. SC said she is a managerial
employee, she is given a reimbursable limit so it is under
her discretion bisan lain pa iyang gigastuhan ato. It is her
business kung asa niya gigatso.. even if magskip xa ug
meal. Because she is a managerial employee. In other
words, even if she falsified the documents, the
misrepresentation still is not material for as long as she was
within the limit. If you commit fraud, it must be of material
points.
If your activities do not involve the exercise fo independent
reason/judgment, you are not a manager, if she is not the
one deciding, she is not the manager. It is one who
exercised independent judgment.
Alright.
Field personnel
Remember field refers to
1. Non agricultural non-agricultural employees
2. Who regularly perform their duties away from the
principal place of business or branch office of the
employer and
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
3. Whose actual hours of work in the field cannot be
determined with reasonable certainty.
So the moment they say, hes agricultural, he is no longer
considered a field member.
An example: Sales person that is paid largely by
commisison basis. So WON he spends the whole night
trying to make a sale, he cannot collect overtime pay for the
time that he works. Why? Because his hours of work cannot
be determined with reasonable certainty.
Dlaa ka client tapos nagkaon mo, ang panguatana
nagtrabaho mo or nagkaon? Its difficult to answer, nagkaon
ka pero nagtrabaho pud ka, you are trying to convince the
client. Because of the ambivalent nature of your activity, you
are not allowed to take advantage and collect extra
compensation. SO how is it given to you? By means of
commission, it is successful selling, compensation that
comes with successful selling.
Successful selling is not defined by a sales order but by
actual collection of the sales.
Family members dependent on the employer for the
support
Whether the Father or Mother depend on the child who
owns the business or vice versa. Why are they excluded?
Because there is already an antecedent relationship
covered by law. Filitaion is antecedent relationship covered
by the Family Code. Labor law is not about to supplant that
because for all you know, by virtue of that relationship, this
fellow might be getting more.
When it comes to family members, SC said that all
extraordinary efforts of compromise should be exerted.
Again, domestics and in the personal service of another.
Before, if the domestic is paid at least 1000 pesos you have
to register him/her to SSS. The new law now mandates that
if the domestic is paid upto 5000 pesos then it is the sole
responsibility of the employer to pay the SSS, if above 5K,
there is now a counterpart on the part of the domestic.
Now, in the personal service of another. Usually
bodyguards, vallets ( story of ancient royale protocol)
July 17, 2013
Last week we discussed workers who are exempted from
Title I -- hours of work, rates of pay, leave.
These are the workers that are exempted:
Government employees;
Managerial employees;
That includes supervisors, members of the managerial staff
if they are covered by the definition. Remember what is
peculiar about the managerial staff --- he does not manage
anyone yet he is called manager. Yet there are people who
are also called managers and they are not included. In a
decided case where the Dept. of Energy passed a
2013-2014 TSN Page 13
compulsory circular that corporations that engage in
manufacturing must have an energy conservation manager.
And it must report to the DoE compliance to the hiring of a
conservation energy manager. And this conservation energy
manager was claiming that he cannot be terminated
because his position is re3quired by this circular and
management was also claiming that this conservation
energy manager is not entitled to overtime. Why am I
bringing this case up?
Because the SC many times has to cut what is not essential
goes to the heart. The SC has said, the requirement of the
Department of energy is not determinative whether or not a
position is regular or casual.
NAFLU VS NLRC (AJINOMOTO CASE) G.R. No. 90739
October 3, 1991
The action is basically anchored on the petitioner'
supposition that his position as Energy Manager is of a
permanent nature considering the continuing policy of the
State regarding energy conservation, and constitutes a
promotion in rank from a rank-and-file level to a managerial
position. Consequently, he asks for what he presumes a
corresponding salary increase.
Held:
Petitioner was not promoted, but he was merely given the
functional title of Energy Manager to comply with B.P. 73, as
distinguished from hi official title of Staff Engineer. There is
no showing that he ha ceased from performing his duties as
Staff Engineer. Of primordial consideration is not the
nomenclature or title given to th employee, but the nature of
his functions. There is no substantial proof that the petitioner
was vested with any of the power and prerogatives of a
managerial employee, as defined by the Labor Code.
The fact that B.P. 73 did not provide for a salary for the
Energy Manager simply means that the law left that matter
to the discretion of the employer, consonant with existing
jurisprudence.
An employer's exercise of management prerogatives, with or
without reason, does not, per se, constitute unjust
discrimination. Unless there is a showing of grave abuse of
discretion, we can not substitute our discretion and judgment
for that which is clearly and exclusively management's
prerogatives. To do so would take away from the employer
what rightly belongs to him.
It would be stretching one's imagination too far if one
considers B.P. 73 as a labor law where doubts are
resolved in favor of labor. B.P. 73 is a law concerning the
promotion of energy conservation. Its provision on the
appointment of an Energy Manager is merely incidental and
does not change the nature of the law, from a law on energy
conservation to a labor law. However, while we continuously
affirm our enduring sympathy for the welfare of the laborers,
especially the low-salaried but modest rank-and-file whose
talents, efforts, patience, and dedication have often gone
unrewarded, we can not trample upon the rights of
employers in their exercise of what clearly are management
prerogatives. The employees inherent right to control and
manage his/her affairs efficiently and effectively must,
likewise, be respected.
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
Please keep that in mind because that is reiterated in a
subsequent case where the SC says, that even if the Labor
Code says that a regular doctor is required if the work place
is hazardous and the workers exceed 1,000 that does not
make the doctor a regular employee. If the doctor is made to
serve more than 8 hours in a workday, he is entitled to
overtime.
Because entitlement of overtime is not dependent on the
nature of your appointment. Whether or not you are a
managerial employee is not determined by your title. Even if
the circular of the Dept. of energy says that you are an
energy conservation manager. Energy conservation
manager is for the purpose of the DoE. What makes you a
manager? Specific duties that you practice, that is what
amakes you a manager. If you are an energy conservation
manager who is under you ? Who are you managing?
Nobody. What is your job? Your job is to see to it that you
make the management comply with the requirements of the
DoE. You are a compliance officer. That is your job. Once
again, you must look behind the titles, the labels in order to
find out if these employees really belong to the
categorization enumerated in Art. 82 as exempt from labor
standards provisions.
Field personnel;
Members of the family dependent for support from
the employer;
Domestics; and
Those in the personal service of another
Art. 82. Coverage. The provisions of this Title shall apply to
employees in all establishments and undertakings 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 workers who are paid by results as
determined by the Secretary of Labor in appropriate
regulations.
As used herein, "managerial employees" 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.
"Field personnel" shall refer to non-agricultural employees
who regularly perform their duties away from the principal
place of business or branch office of the employer and
whose actual hours of work in the field cannot be
determined with reasonable certainty.
Pakyaw workers
Remember pakyaw workers? Two kinds of pakyaw workers:
piece-rate and task-basis.
A bonafide pakyaw worker is not given hours. He is just
given a sample of the output that he should meet. And he is
2013-2014 TSN Page 14
paid on a per piece basis if he is a piece-rate and a task-
basis if he is from a task-basis compensation. Task-basis
means according to stages of completion. Why is that
important? Why do you say that the stage at which a task
basis employee is paid is important because even if they are
exempt from overtime they are not exempt from the wages
provision of the Labor code.
That worker, whether casual or regular, must be paid his
compensation not longer than intervals of two weeks and in
no case longer than 16 days. Even if you are regular piece-
rate or on a task-basis, every 2 weeks you must be paid
because that is what the provision on wages says.
Now, if you are not finished the task but the agreement for
the compensation is according to the task, are you entitled
to be paid? Yes, you are entitled to be paid. What is the
basis of the pay? The stage of completion. If it is one half
complete then you must be paid one half.
Simple ra na kayo. Aha man ang problema? Driver siya.
Unsa man ang gi-drayberan? Kanang heavy hauler in
different points in Mindanao and it is on a per trip basis and
the tariff is already made known to them. Kani gani paingon
Surigao city 1,200 na mao na imong rate gikan didto
pabalik. Pag-abot didto na nahugma ang makina. Di man
niya kaya i-lift ang makina. Kuha pa siyag mekaniko kay
nagtukod siya. Mahitabo ba nang mahugma ang makina?
Mahitabo na. Madakdak ang trak. Mahugno ang makina
labin na kung ang engine support ana kay gitaya na. it stays
there for more than a week already. It took him a week to go
there.
Nganong 1 week man didto? Kita na mog 26 wheeler na di
madag semento? Nisaka na nag 38 degrees primera na ba
na? mahimo ba na sa driver ingnan ang helper tan-awa ra
gud kung ga-aso na ba ng ligid nato. Way break-break
magsige dagan man na kay hinay man kayo. Mura man nag
snail. Di makalukso anang river. Isa ka semana paadto ditto
pagdeliver ug semento. Hugma ang makina. Mangayo na
siyag sweldo, does he have the right? Task-basis man
kaha? Wa pa man nahuman. He has the right. He is
covered by the wages provision.
What is the difference why we have to distinguish piece-rate
from task basis? The basic difference is piece rate is entitled
to 13th month pay, the task basis is not entitled to 13th month
pay. Why? Because the law says so. I dont know why. It
was Cory Aquino who said so. Its in the guidelines. A task
basis pakyaw worker is not entitled to 13 th month pay, a
piece-rate worker is. How is the 13 th month month pay for
the piece worker determined? You pay the average. You pay
his gross earnings over a 12 month period preceding the
period that is in question then you divide it by twelve. That is
the 13th month pay.
Now, the assumption is that a piece-rate worker works only
on the average only 8 hours a day. One day he may work 12
hours but the following day he may be so tired he cannot
work so that in the average he only works 8 hours. That is
the assumption of the law.
Taxi driver ka 24 hours ang imong boundary. Pila lang imong
maboundary? 1600 ngano man? Bago ang sakyanan.
Avanza man ang sakyanan. (mas maka.save kung vios
kaya mas maraming avanza ang nag-aabang sa airport).
Are you entitled to 13 th month pay if you are in a boundary
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
system? You are entitled. That is employer-employee
relationship. That is not lease. And you work on the average
of 8 hours only? Why? Tan-awa ng mag-24 hours karon
maka 24 hours japon ugma? Di na na matulog. Your
average earnings will fall just like an 8 hour period. They are
entitled to 13th month pay. All these things that you learn you
apply them to regular ER-EE cases that you know. Find out.
Retail and service establishments that employ not more
than 5 employees. They are exempted.
Health personnel of medical institutions (Section
83)
1. In cities with at least 1 million population or
2. In establishments with one hundred capacity
What about health personnel? Their work week is not 6 days
but only 5 days. So if you are a nurse in Davao Doctors
hospital and you are made to work after working for 5
working days. If you are made to work on the 6th day then
you will already be paid premium. What is the premium? It is
30% of your regular hour. That is for morning. On the 6th day
if the work week is only 5 days.
Art. 83. Normal hours of work. The normal hours of work
of any employee shall not exceed eight (8) hours a day.
Health personnel in cities and municipalities with a
population of at least one million (1,000,000) or in hospitals
and clinics with a bed capacity of at least one hundred (100)
shall hold regular office hours for eight (8) hours a day, for
five (5) days a week, exclusive of time for meals, except
where the exigencies of the service require that such
personnel work for six (6) days or forty-eight (48) hours, in
which case, they shall be entitled to an additional
compensation of at least thirty percent (30%) of their regular
wage for work on the sixth day. For purposes of this Article,
"health personnel" shall include resident physicians, nurses,
nutritionists, dietitians, pharmacists, social workers,
laboratory technicians, paramedical technicians,
psychologists, midwives, attendants and all other hospital or
clinic personnel.
Fishermen crew
The crew of fishing vessels who go out in deep sea, are they
paid for work beyond 8 hours? The answer is yes. Provided,
it is actual work. Are they paid for staying in the boat in
excess of 8 hours? The answer is no. it must be actual work
in excess of 8 hours every working day. How much are they
paid? They do not have overtime pay they only have straight
time pay even for working in excess of 8 hours. That is the
rule under P.D. 74 following the fisheries act of 1979.
So, the crew of fishing vessels have overtime pay equivalent
to straight time pay.
Alright, let us go to definitions.
What is a working day? According to the implementing rules
a working day is 24 consecutive hours beginning at the
same time everyday from the 1st hour of work. So, if your
working hours is, 8-12, 1-5, thats 8 hours. What is the
2013-2014 TSN Page 15
coverage of your working day? Your working day is from 8
oclock in the morning you go around the clock twice then
you go back to 8 that is your 4 hour working day. Why is that
important? Because that is the framework when you are not
supposed to work more than 8 hours. Otherwise, you will be
entitled to overtime pay. So, working day is not equivalent to
calendar day. It begins everyday on the same time on the 1st
hour of work. That is the working day. Now, if you divide the
working day. but the calendar day, if you divide it to 3
shifts, 7 am-3 pm , 3pm- 11pm, 11pm-7am. Thats 3 shifts.
Why 7 to 3? Where is the lunch break? Aahh, where a
workplace operates for at least 2 shifts the ER is allowed no
longer to grant meal breaks. Sugod na gani kag trabaho,
naka timotimo ka na, mulabang gani ka sa panahan na tig-
kaon, pugngan ka aron makaalusot ka. Adto na ka kaon
pagkahuman. The law allows that. If a workplace is on a 2
shift basis the meal period is done away with. So, 7 to 3 una
ka mutunga didto trabaho alas syete namahaw ka na. Ang
pasabot sa paniodto, alas tres ka na maniudto. Naa ba kay
break? Naa. Rest periods you are allowed. Half of the
calendar day you are allowed rest periods, coffee breaks not
longer than 20 minutes. And that is compensable working
time. That is article 84.
Art. 84. Hours worked. Hours worked shall include (a) all
time during which an employee is required to be on duty or
to be at a prescribed workplace; and (b) all time during
which an employee is suffered or permitted to work.
Rest periods of short duration during working hours shall be
counted as hours worked.
Now, 7 am-3 pm , 3pm- 11pm, 11pm-7am, suppose you are
working for 1 month on the 1st shift, 7 to 3. At the end of the
month the memo of change of assignment is pu there in the
bulletin boarnd. You are there, Juan dela Cruz. You are now
shifted to the 3rd shift, Graveyard shift 11pm-7am. Now, on
that same calendar you show up for work 1 st shift 7-3 that
same calendar day you go back to your workplace and you
report at 11 in the evening and you go beyond the 8 hours
that day and you come out at seven. How much will you
paid on the 11-7? Straight time pay? Your first day of work
on that new shift you are paid overtime rate. Plus night shift
differential from 11 to 6. Why? Because your working day of
that last day is 7 back to 7. Thats your working day. Now,
on the second day you are working now on that 3rd tshirt,
your working day shifts. It now begins at eleven but your last
day your working day is still 7 in the morning to 7 in the
morning the following day. So your work in excess of 8
hours, 7 to 3 ka tapos nibalik napud ka pag alas onse, 11-7.
That is overtime because you are working more that 8 hours
in the same working day. So please ha, keep that in mind
because it is the working day that is the framework for the
overtime. That determination of whether or not you are
entitled to overtime. That is the framework.
All the time that the employee is to be at a prescribed
workplace, is to be on duty or to be at the prescribed
workplace or all the time that an employee is suffered or
permitted to work, two rules:
1. The first rule is to be used if you want to determine
compensability and the employee is not productive.
2. The second rule is to be used if the employer-
employee is actually productive.
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
Example, garments. What do they produce in these
garments? Working gloves. Sa ato pa, para asa man ng
working glove? Export. Naa bay nag-gloves diri nato? Wa
man. Isa ng construction, nga naa tay kana diha. Kanang
mag-construct, magsugod na gani nag kalo, ah naa na nay
gloves, naa na kay hard hat. Di ba? Naa na kay hard hat,
kana sila mag-gloves gloves na mga tiranggu diya. Pero
kanang mga ultimo, wala gyud. Mga purnal, wa gyapon na.
Tagaan lang na silag kalo aron ma-satisfied ng Asya.
Workplace safety. Occupational safety.
But suppose one of the workers in these garments,
since she has been found to be deficit in her output,
surreptitiously carries unfinished work in her bag and goes
home and finds a sewing machine with a strong enough
needle to go through the work that she is doing and she
finishes her work there and she brings it back so that she
can comply with her quota. Nawa na ha? First question: Can
she be required to have a quota for an eight-hour working
day? Kinahanglan mag-produce ka ug singkwenta (50) ka
gloves, wala ug tuo. Gloves na wa ug tuo. Pair man na. Pair.
Singkwenta ka pair, singkwenta ka gloves. One hundred ka
gloves kay singkwenta man ka par. Dili siya makahimo ana,
dili siya suweldohan? Di mahimo. Time-worker man siya.
Nganung time worker man siya? Naa man siyay time card.
Punch in-punch out, time worker siya. Di siya mahimo nga
buhaton nimong piece-rate. Pero can you give him a
quota? For purposes of discipline, you can. If she cannot
make it, warning. The following day, paltos pa gihapon,
wala na. Tawgon na na siya sa supervisor. Sukit-sukiton na
na.
Employer: Diin man ka gabii? Diin man kang disco
kagabii?
Employee: Pero gud Sir, wala gyud ko katulog gabii kay
ang akong anak gitubuag ngipon, sigeg hilak.
Employer: Di na mahimo ha, di ka makahimo sa imong
quota. Di na mahimo. Ika-tulo pa gani, di ka maka-quota,
tangtang ka sa linya. Balik ka na sad ug training. Balik kag
trainers allowance.
Pwede ba na? Yes, that is allowed. Balik ka. So
you will be trained again. Thats for purposes of discipline.
The quota is not given for purposes of compensation. Now,
those who are afraid that they might be disciplined. Hinay-
hinayon nilag tigum tong wala nila mahuman, dad-on nila
sa ilang balay. Ilang trabahoon adto. The issue is can they
be claimed overtime? Gida nila sa ilang balay, nagtrabaho
sila. What is the rule that we should follow? Suffered or
permitted to work. Are they suffered or permitted to work?
Unless their supervisor knew about it and did not raise any
objections, they are not suffered or permitted to work
because they surreptitiously brought the working materials
home and they did it on their own time. Suffered or
permitted to work.
Thats a different story if here is a worker that
arrives at the assembly line always one hour before his
actual working hours. The supervisor also arrives one hour
earlier. Why? Because the supervisor is in charge of getting
the work stations ready. Butangan na na niyag raw materials
dinha. Tan-awon na niyag na bay hilo ang mga makina. Tan-
awon ba ng dagum ana nga nagtul-id pa ba o nabaliko na.
Siya muy mutan-aw ana. Now, because the supervisor sees
one of these sewer. She is already there, the supervisor
asks her, Ikaw ra gud, i- distribute ra gud ni day sa mga
work stations kining mga tinabas nga gloves nga wala pay
tahi. Ibutang ra gud ni dinha.
2013-2014 TSN Page 16
Suppose she does it, helping the supervisor or
suppose she is not asked but on her own, she takes it on
her own and picks up these materials and helps the
supervisor to label. That supervisor is grateful but the
supervisor never asked her. Question: Can she ask for
compensation for that work? That is suffered or permitted to
work. Implied consent if the employer or his duly authorized
representative sees her working and says nothing. Wa ka
hununga. Suffered or permitted to work. Kung sa binisaya
pa, gi-agwanta ang imong trabaho. Bayad ka ana. That is
implied consent. So this is with respect to when the worker
is active and it is not his working time.
All right. Other examples. When a worker, working
time is defined, and yet he or she is made to come earlier
because of preliminary duties that are required of him. For
instance, feeder or feed tender in a hog farm. If you are a
feeder or a feed tender in a hog farm, there are certain
hygienic requirements that you have to undergo before you
properly do your work. Why? Because you are not supposed
to put yourself in a position to contaminate the hogs. You
come from the outside. Muabot ka. Pag-abot nimo,
kinahanglan maligo ka una. You take off your street clothes,
keep them in a certain place. You have to take a shower.
After your shower, you put on your working clothes that
remained there and that are never taken out. After you put it
on, then that is the time you are ready to feed the hogs. That
takes thirty minutes. But your time card only says you start
working at 7 (am) but actually, you arrived there at 6:30.
Question: Is the thirty minutes compensable working time?
That is the issue and the answer is yes. That is
compensable working time. Why? Because you are required
to do these preliminaries. Your main duties cannot be done
unless you undergo these necessary preliminaries.
Question: Ang imong trabaho receptionist. Pag-
apply nimog trabaho, mao nay requirement dinha: pleasing
personality, required oral and written communication.
Pleasing personality. Wa pa gani abri, tua na ka. Niya aron
ma-pleasing ang imong personality, mamintura ka sa imong
mga kuko. Question: Is the time that you are there thirty
minutes earlier, is that compensable working time? No, its
not compensable. Thats not compensable. That is your
responsibility. Remember, it has always got to do with some
improvement, some procedure that you have to be at the
ready that is required of you. Suffered or permitted to work.
Here is the Pan Am case, Pan Am Employees vs.
Pan Am. Ground crew of Pan Am Airways. Their instruction
is once the airplane taxis in, that is the priority. If you are
eating, you leave what you are eating and attend to the
plane. Why? So that there will be shorter turn-around time.
The schedule of the plane is always earlier than the meal
period. But many times during the week, the plane is late.
Many times during the week. More than half of the time
during the week, the plane is late. So it now happens that
you have just resigned yourself into saying, di na lang ka
mulingkod ug kaon ug paniudto nimo kay muabot man gyud
ning eroplano nga samtang nagakaon ka. Now the issue is:
Is your entire meal period compensable or only those times
when the plane comes in exactly within your meal period?
That is the issue. Di ba? Hibalo ba mo unsa. Kay sige na
mag ka late ang plane, muingon na lang ka nga di na lang
ko mukaon hangtud di moabot ang eroplano. Then the issue
boils down to this: Are all my meal periods compensable or
only those meal periods that are disturbed by the late
coming of the plane? Supreme Court says all your meal
periods now are compensable working time. Thats what the
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
Supreme Court says in the Pan Am case. Because you are
disturbed so often, you cannot make use of that meal period
according to your own personal benefit. Suspense man ka.
Niya kinahanglan mu-attend man ka sa plane dayon kay
mutuyok man dayon na. Kinahanglan man na mulupad
dayog balik.
The economic logic is the more the plane is on the
sky than on the ground, the more profitable for the airline.
Mao nang patuyukon gyud dayon na nilag balik aron
mulupad. Mao man na. In terms of efficiency. So, you are
impliedly required to be at the required place or at the
workplace. Even if under the law, you are supposed to be
consuming your meals. Now, remember the rules on meal
periods ha. Because the meal period is also a right. What is
the right for meal period? How much time do you have to
consume your meals? One hour and it should be
uninterrupted. What kind of meals are these? Coincides with
the Anglo-Saxon custom of three meals: Breakfast, lunch,
and dinner. Now the law says that if the employer has a
good reason, he can do away with the meal period of one
hour provided that his workplace is not physically strenuous
in nature. If that is the case, then the employer can just give
the employee twenty minutes to consume his meals, his or
her meals, and the same will be compensable working
hours. Give an example:
1. Construction work - You cannot dispense with meal
periods because the work is strenuous in nature. Ingnon
nimong mga pahinante diya nga memorisa lang na ninyong
paniudto, di mahimo na. Bug-at and trabaho nila.
Construction industry, you cannot dispense with meal
periods.
2. Retail Industry - Retail, Gaisano. Gaisano Grand,
Gaisano Mall. Can you? Yes, you can dispense. But you
must grant them twenty minutes.
Another rule, if the work place is, at least, on a two-
shift basis and with all the more reason if it is on a three-shift
basis, then you dispense with the meal periods. You
dispense with the meal periods. The worker is obliged to
show up to work already having consumed his meals.
All right. How about being on call? On call. What is
to be on call? You are not actually at the workplace. You are
somewhere else but you are always ready to be called by
your employer in case he needs you. Now all the time that
you are on call, are you entitled to compensation? Example,
operating room nurse ka. Christmas and holiday and New
Years Eve, the most sacred family time for family bonding,
you are on call kay operating room nurse ka man. Nganong
operator nurse ka man on call? Libintador man na, kanang
mabuthan sa kamot. Ing-ana dinha. Now, tawgon ka man
dayon ana so dagan dayon kuno. Question: Is all the time
that you are there compensable time that you are entitled?
Supreme Court has not yet written a decision on that but the
decisions in the US jurisprudence is you are not entitled to
compensation during your on call. Why? Because you can
still make use of the time to your benefit. Who can prevent
you from cooking something, preparing the noche buena
while you are waiting for the call. Nobody can prevent you.
You can always do something for your benefit while you are
on call. But the rule says the moment you receive the call,
working time tolls. Kadawat kag call, alas-siyete sa gabii.
Report to Operating Room No. 3. Naa tay amputation dinhi
kay nabungkag ning tanang kamot niya. Gikuptan man niya
sa tirang-lolo (NB: Superlolo a type of firecracker). Niya
2013-2014 TSN Page 17
nibuto man si lolo. Di man ta to niya kuptan pero nagkaon
man siyag biko. Pagkupot niya, paglabay niya ay nalayo na.
Wa pa man kay nagpabilin man si biko. Pasko man, di ba?
Di nibuto. Operahan. Nadawat niya alas-siyete to. The time
to travel from her home to the hospital place of work, that is
already compensable time. Until she reaches back to her
home, that is compensable time. So thats the rule with
respect to being on call.
What is the rule with respect to brown-out? Nag-
brown out ug duha ka oras. Compensable gyapon na,
Father. Nganu man? Masahista man na sila, niya buta. Sige
lang gyapog trabaho. They are still working. Buta man nga
mga masahista. Now lets change the facts of the case.
Unsa may trabaho niya? Composer sa kanang i-print.
Printing gani. Siya may mu-layout ana. Wa may electricity.
Di, dili mudagan iyang monitor. Di mudagan iyang computer.
Unsa man, maghintunga lang siya dinha. The rule is when it
is brown out, brown outs that do not last more than two
hours, provided the employees are allowed to use the time
to their own benefit. Meaning makalakaw sila, baligya silang
pangompra diya dayon pauli, palit ba silag pirit or unsa ba
dinha aron pagpauli nila, diretso na imbes nga mangompra
sila human trabaho, the employer can extend the working
hours. Two hours. That is what the circular for brown-out
says. Not more than two hours. That is the rule. Now, the
rule is questionable but that is the rule.
Attendance of meetings. The worker is not
productive. Paadtuon siya. Unsa man iyang trabaho? Teller
sa bangko. Teller siya sa bangko. Imbes na manglingkod
siya diya ang teller, naay seminar. Gipadagan sa Central
Bank. Unsa man ng seminar? How to recognize fake bills.
Domingo ang seminar diha sa Central Bank. Nganong
domingo man? Ang lecturer, gikan man sa Manila gipalupad
diya. Dala na lang sa iyang bakasyon paingon sa Eden. So
mu-lecture siyag duha ka oras. Is that compensable time
nga na siya sa lecture? It depends. If you were not made to
attend pero nganung gusto man gyud siya mu-attend? Teller
siya. Ika-upat na siya sigeg ka-short. Sa iyang training,
absent siya pag-train nila. So sige siyag ka-short. So di siya
makadala sa shortage allowance. The bank, let us say for
example, has a shortage allowance. Three month period,
you have two thousand pesos. If you do not commit any
shortage within the two month period, the two thousand
pesos is yours. If you have a shortage, then the shortage
will be deducted against your shortage allowance. That is
the rule of the bank. Wa pa gyud siya kadawat tawon anang
iyang two thousand kay nganu man? Sige siyag ka-
shortage. You know that is a special skill. Katawa lang mo
ana. Suwayig ihap. Unsaon man nimo pagkabalo kung
taliwa na beh? Ah dili, tan-awon gyud na nimo kada usa. Di
na nimo mahuman. Kinahanglan sige ihap ra ba ka. Hulbot
dayon nimo, mailhan dayon nimo nga fake na.
Tulo ra na. Tulo ka fingers ra na, makahibawo ka
na. Kinsa may niagig teller diri? Naa bay niagig teller diri?
O di ba? Naa ra na diri, mailhan na nimo. Dili gyud ka kaila
ana kung kuwang ka sa training. Karon na nay mga aids,
daghan na kayo ug watermark, naa nay mga pasihag-sihag,
thread lines. So as to seminars, meetings:
1. It is scheduled not during working hours;
2. You are not compelled or ordered to attend
working;
3. When you do attend that, you are not actually
productive.
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
Now take note ha, even if the supervisor knows
that you are attending but the supervisor does not order you
to attend, that is not suffered or permitted to work. Why?
Because you are not productive. Wa man ka manguhag
laing account o di ba mag-disburse ug account. Wa man ka
acting as a teller. Naminaw man ka sa training. You are not
actually productive. If that is the case, those three requisites,
its not compensable. So all right. Because many times, they
give you problems on compensable working time.
Manila karon ha, they are trying out a Metro Manila
Overarching Ordinance. Unsa man ng ordinance? Truck ban
for the whole day. Truck ban starting at 8 in the morning up
to 6 in the evening. Kanus-a na man ng mga trucks ma-
allowed pagawas? 6 in the evening to 8 in the morning.
Now, kung ikaw driver ka diya sa truck magdakpan ka diya,
padaplin ka na kay dako kayo ang fine. What is the
classification of the truck? Unsa may truck, unsa may dili
truck? Double tire na gani ang inyong likod, truck na na. Sa
ato pa, kanang mga jeepneys sa Arakan nga oversized
jeepney nga double tire sa likod, truck na. di na makasud
didto. Now, what happens if youre the driver? Niya
nadakpan ka sa truck ba, padaplin ka niya nagtulog ka.
Katorse oras, perting hinagok nimo. Lamia sa tulog nimo.
Kana. Na sad ka gamay nga katol ba or standard tool of the
driver. Katol, kaldero, gas. Nganong kinahanglan man siyag
gas? Usahay, mag-uwan uwan man, manguha kag kahoy
unya imong isugnod diya human bitayon nimo sa ilalom sa
imong truck, kaldero ana. So unsaon man na nimo?
Sindihan na nimong kahoy nga basa pa, di man na musiga.
Butangig gamay nga gas, di ba muulbo dayon. Naay gamay
mantika ana, palit kag gamay ginamos dinha. Naa bay
papayas nga hilaw-hilaw, sungkiton dayon nimo. Ayos na.
Is your entire stay there because of the truck ban,
is that compensable? Wa pa na ma-covered sa
memorandum circular sa Department of Labor Labor
Standards. Bureau of Labor Standards. It is my submission
that if your original orders was given in such a way that your
trip, you have no choice but you will be caught in the truck
ban, then you are suffered or permitted to work. But you are
stopped by the truck ban because your employee chose, so
therefore that is compensable. Kung ikaw naglangan, you
had orders not to leave but you left, then you can not be
considered as being suffered or permitted to work. So note
two kinds of pay:
1. Premium pay
2. Overtime pay
This is with respect to compensability. What is
premium pay? Premium pay is additional compensation.
Additional to what? To your regular, straight time pay of 8
hours. Premium pay is additional, on top of your regular pay
granted to you because you are working on a day when you
are not supposed to work. Its your rest day. Its a regular
holiday. Trabaho ka. Kanang i-sweldo nimo dinha, premium
pay na because youre not supposed to be working. Thats
your rest day or its a holiday.
What is overtime pay? Overtime pay, again, is
additional compensation paid to you because you are
working in excess of 8 hours during your working day.
Question: Can it happen that additional pay is both premium
and overtime pay? The answer is yes. When? When you are
working on your rest day in excess of 8 hours. So that
portion of your working time in excess of 8 hours during that
2013-2014 TSN Page 18
day which is your rest day, that is both overtime and
premium. Question: In the computation of 13th month pay, is
premium pay and overtime pay included? 13 th month pay
computation. The answer is no. Only your straight time pay.
Is premium pay and overtime pay included in the
computation of your withholding tax? And the answer is yes.
That is included. Remember the basis for the computation of
premium and overtime pay is your regular rate or your
straight time pay. That is the basis for the computation.
Now, there is a night premium pay. Night
differential, take note of that. Technically, night shift
differential. What is that? If you are made to work between
the hours of 10 and 6 in the morning, you are entitled to an
additional compensation of at least 10% of your straight time
pay. Night shift differential. What is your work? Security
guard. What are your working hours? Ang security guard,
dose-dose man na sila. Unsa man ng dose-dose? Alas-otso
sa gabii hantud alas-otso sa buntag. Ang ilang gipulihan,
alas-otso sa buntag hantud alas-otso sa gabii. Dose-dose.
Kanang gabii, na na siyay night shift differential from 10
(pm) to 6 (am). Everyday, he receives that. Is that part of his
regular pay? If his shifting is never changed, that is his
regular shift. Murag lisod man tuuhan noh pero ug dili pud,
perti na putia sa iyang mata ug luspad sa imong nawong.
Kadaadlaw ing-ana imong kuan, wakwak ka na. Thats why
the turnover of these call centers is very fast because
according to the Supreme Court in the Shell case, the night
was not created for work. The night is not created for work
so, therefore, there should be additional compensation for
working at night.
Now, if you take a look on the recent law on night
work/night workers, it says nothing about pay for night
workers. Nothing. Because those call agents receive more
than the straight-time pay minimum wage. They receive so
much higher pay. What is provided there is that they should
be allowed or be given health check-ups. They can request
for health check-up every 6 months. Then they can be
allowed extended leave for health reasons. Why? Because
you are affected. You work at night. Sagunsula ra gud. The
younger you are, the better your stamina is for sleep
deprivation. The younger you are. Mag-cram ka, 24 hours,
igo gyud mug-exam ka. Mahimo pa na nimo. Nganu? Karon,
you are in your 20s. Kwarenta ka na, suway ra gud mo ana.
Maghinutok ka. Although nay nag-ingon pop, di ba. They
pop pills to pop them up. But thats the problem. The
problem of pilots. Trans-pacific flight is normally 14 hours.
You fly from Hong Kong to San Francisco, that is 13-14
hours. Its not the same as flying from the US to Europe.
Thats only 8 hours. Di ba? Anywhere from Singapore,
Bangkok to North America, pareha ra lang man na. Mu-land
ka sa San Francisco or sa New York, almost the same.
Why? Because you have polar flight, you go over the North
Pole. You can cut the globe in equal parts, that is the
shortest part. The shortest path -14 hours. Piloto ka. Dili
man na sila overtime. Wala man na silay overtime. They are
paid on the basis of how many nights they sleep not in their
designated home cities. They have a maximum landings
and takeoffs per 24-hour period. Your body has to take that.
Unsa may nahitabo atong pag-landing sa San
Francisco. Nakuha baya tog iPhone cam. May gani karon,
kanunay na nay camera. Kuha gyud. Tulog-tulog nato. Upat
kabuok piloto sa cockpit. Two of them were seniors. Ang
nahitabo ato, katulgon na ang duha. Unya panahon na mu-
landing, ah ikaw na lang una. Nakalimot sila na katung ni-
takeover, although daghan na ug oras, permiro pa siya mu-
land sa San Francisco. Lupad gyud ang lubot. Undershot.
The San Francisco runway is already protruding the sea.
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
Sangit. Lupad na. Pagkawala sa lubot, wa na. Kinsa na may
mu-giya. Those are the workplaces. Drivers, kanang mga
bus drivers. Once you turn them into no longer time workers,
patay ka. Mao nang sa Edsa, mau ng gi-ingun nilag death
highway kay porsyento man. Kadaghang mangamatay
dinha. Let us continue next week.
July 24, 2013
The coverage is the entire Labor Standards. What will be
new there is nightwork. This is the culprit for adjusting the
numbering of the labor code. Those are what are new,
nightwork.
Employment of Night workers. That is what is new. Article
154 of the New Labor Code as up to 161, Night work
schedule. That is by virtue of R.A. 10151 June 21, 2011.
And then there is another new law, which is this special law.
And that is the Kasambahay Law. Kasambahay. They are
used to be domestics. Now they are kasambahay. I suggest
you go to the website of the Department of Labor, there is a
primer there for the kasambahay. Catechism there, question
and answer. So, you dont have to take down notes. Just go
to the DOLE website and get the kasambahay catechism. I
call it catechism, question and answer.
I just like to remind you of the night work . What it does not
cover. Because you will find out that this is strictly for call
agents. This is strictly for call agents because in Article 154
coverage. This chapter to apply to all persons, who shall be
employed or permitted or suffered to work at night, except
those employed in agriculture, stock raising, fishing,
maritime transport and inland navigation, during a period of
less than seven (7) consecutive hours, including the interval
from midnight to five oclock in the morning, to be
determined by the Secretary of Labor and Employment,
after consulting the workers representatives/labor
organizations and employers.
So there you have it. It is strictly for call agents of the BPOs.
Kanang mga.. unsa may tawag sa banana packing houses.
Their operations are non-stop. They process it overnight.
That is not covered. It is being said so by the law
So I pointed out these two laws to you because these are
two sections of the labor standards that is probably not
reviewed to you. We might not have time to cover these
thoroughly. You should be able to go through it yourself.
We have gone through the different classes of workers that
are not included in Title 1, hours of work, ____ of pay. We
have gone through the rules of compensability(?) on
working hours, Article 84, the two rules. Those are the two
basic rules for the determination as to whether or not the
hours of work of an individual employee are compensable
working hours or not.
The workers rules: (a) all the time that an employee is
required to be on duty or to be at a prescribed workplace;
(b) all the time during which an employee is suffered or
permitted to work.
The first rule is used to determine whether or not the hours
of an employee is compensable when he/she is not
2013-2014 TSN Page 19
productive but actually working. That is the rule that you
use.
When he is working, but he is outside his working hours, the
rule that you use is suffered or permitted to work. Have we
discussed this? We discussed this.
Now let us go to the evidentiary side. The Supreme Court
has said, when an employee files a complaint for
underpayment or nonpayment of wages, what does he have
to do? All the employee has to do is to allege: (1) he is an
employee of this employer; (2) he has to allege that he has
been underpaid or not paid at all.
The first he proves by writing an affidavit. I so and so, that I
am being engaged by XYZ corporation as the driver since
1981. That is enough. That is his evidence, his own
testimony. Now, does so and so, does he have to produce
payroll records? Or his pay slip to prove that he has been
engaged ___? The answer is no. All he has to do is to
allege! Why? why is he not required to produce any proof,
his pay slip? Because according to the Supreme Court, the
employer is required to keep payroll records. So my
question is what kind of payroll records is the employer
required to maintain and for how long. Implementing rules
say that payroll records to be kept by the employer three (3)
years. Why 3 years? Because the prescriptive period for
money claims is just 3 years. Actually the employer keeps it
for longer than 3 years. Why? because of another law, the
National Internal Revenue Code, which must keep records
up to five (5) years for purposes of the NIRC.
Alright, if the employer is to keep payroll records, what must
be contained in the payroll records? For each employee, he
must maintain payroll records that contain the following: (1.)
the period covered by the payroll. You know very well that
the period cannot exceed sixteen (16) days. Why? Because
the law requires that the employer must pay the employee
at intervals of two (2) weeks or in no instance more than 16
days. So period coverd. Second. (2.) the rate of pay, the
strict time rate of pay whether hourly, daily, weekly or
monthly.
Now labor standards is basically for daily paid workers. They
are the lowest earners. The daily paid. So our law reckons
pay on a daily basis. Is there such a thing as hourly? Yes!
There is. You have to divide the daily rate according to the
maximum number of hours required by the employer which
in no case should be more than eight (8). Is it not? Because
the maximum number of hours worked per working day for a
full days pay must not exceed 8 hours. It can be lower than
8 hours. It can be just 7. Because the employer might give
that as a concession. How? Either by explicitly or by
practice. The moment that you allow your employees to take
a lunch break of longer than 1 hour and that obtains for a
considerable period of time then that gives rise to a right.
For example, ordinary office worker, the working hours is 8
to 12, 1-5. Thats 8 hrs. But then, actually, you allowed the
workers to report back after lunch at 2 oclock. What
happens? The maximum number of hours becomes 7. So
actually in effect the employer by practice has lowered the
requirement of the law. So what is the maximum number of
hours of work now for a full days pay? It is 7. Is that
violative of the law? No. Why is it not violative? Kung
musaka violative man. Kung muubos kag 7, di man.
Because it is in favor of the employee. That is the labor
code. If it favors the employee, then that is allowed.
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
We connect it to a collective bargaining agreement.
Suppose the CBA says 8 hours of work, 8-12, 1-5. Actually
in practice, they are allowed to come home and to come
back at 2. What has happened to the written agreement?
Can the employer, after, let us say, 1 year allowed its
employees to come back at 2, we will stick it out to 8 hours?
Now you must come back at 1. Mubalik ta. Posterity
measures depict that we should go back to 1. Can you do it?
No more! You cannot do it. You will have amended the CBA.
Was there a written amendment? No, that is called
Fractional Bargaining. There has been an amendment due
to practice. And practice gives rise to rights. And if the rights
that gives rise to is favorable to the employee then it is that
practice that prevails. Favorable man. The lowering of the
number of hours.
So laxity. In terms of enforcing labor standards does not
work in favor of the employer. An employer who is lax is
punished by the labor code. Sa binisaya pa, ang
mapasagarun ginasilutan sa balaod. Simple lang and
pasabot. Ang tanga nga employer gibunalan sa balaod.
Tanga tanga gani ka nay musilot sa imo.
However, suppose that has already been the practice and
the CBA has come up for amendment. And then you beat
the 8 hours. Is that allowed, so that the next 5 years you
again enforce 8 hours? Is that allowed? Yes, that is allowed.
Because the employee is presumed to negotiate the terms
and conditions of work. For as long as it does not bring the
benefits or the obligations of the workers lower than the
standards, then there is negotiation of amendments allowed.
You can bring it up. In other words the diminution of benefits
prohibition under Article 100 and Article 127, they will not
apply.
Alright. We have taken up the concept of working days.
Remember the rules. The concept of working week. How
about the annual year? Is there a concept of the annual
year? No, there is no concept of the annual year. There is
however a concept of the annual wage. When is the annual
wage material? The annual wage becomes material when
the standard work hours or standard work days are not
applicable to the employee. Give an example. Suppose you
have a security guard on a 12 hour duty. Your working hours
are 12 hours. And you have no rest day. You work 365 days
of the year. Wa kay ligo ligo. Dose ka oras imo trabaho. In
that case, you actually receive pay for more than one year.
Everyday you work overtime. What is the presumption if you
work on sunday and that you have no restday? The
presumption of law is that Sunday is your restday and when
you work on a Sunday because you have no declared
restday, youre working with no premium for working on a
restday. So that is included in your computation. When you
compute there, the actual number of days of work is
certainly more than 365 days. That is when the annual
working year becomes relevant.
Let us see how many premium pays and overtime pays you
can still remember. 12 hours ang trabaho sa security guard
everyday of the year. What should be included in the
computation? Review na man gud ni. Alright unsay iapil?
Kanang security guard, dose ka oras gani na, mao na ilang
gitawag syete syete. 7 oclock in the morning to 7 oclock in
the evening. Mao na ang 1st shift. Ang 2nd shift, 7 oclock in
the evening to 7 oclock in the morning. Syete syete. Now if
you are in the 1st shift, syete syete ka. 7 oclock in the
morning to 7 oclock in the evening. Do you have nightshift
2013-2014 TSN Page 20
differential? Wala kay nightshift deferential. Nang nightshift
differential asa man na? 10 in the evening to 6 in the
morning. Kung na balhin ka sa ika duhang shift 7 in the
evening to 7 in the morning, naa kay nightshift differential.
Naa ka overtime? In either shift you have overtime pay
because you work in excess of 8 hours. So how many hours
of overtime do you have every working day or night? 4
hours ka. Overtime ka ug 4 hours.
Now, how many times can you collect the premium of
restday pay. For working on a restday what is the rate?
150% ra na. Basta restday if you work. 130% if you work on
a holiday, dili legal holiday. Kung legal holiday, 100% diba?
200% na imo kung mu work ka.
So right then and there ang 365 days dungagan na nimo
dayon ug 11 days. 11 days na man run ang legal holiday. Na
12 na man diay. Nganong na 12 man? There are 2 muslim
holidays that were added to the original 10.
So right away you add those, you add nightshift differential,
you add overtime. So the computation of the annual pay
becomes very wide (bad) because you get the sum total
annual pay, you divide it by 12 and that is his monthly gross
pay against which is deducted those that are allowed to be
deducted by law. What are those allowed to be deducted by
law? Ha? What are those in the labor code? Review man ni,
ngano di naman mahinumduman ha? SSS, Pagibig,
PhilHealth, o tulo na. Withholding tax, what else? Union
dues. Di ba? If there is a proviso in the CBA that says check
off of union dues. And then premium or industrial insurance
must have been agreed upon by the employees and the
employer. Those are the allowable deductions.
Question. If an employees is allowed to make cash
advances. Not sexual advances that is prohibited by the
anti-sexual harassment law. This is advances from your
payroll. Can the employer deduct from the gross pay? Is
there any limit to the amount that he may deduct due to
advances? Is there a limit? Di kaha ma sero na na pagka
katapusan sa buwan? Mahurut na lang na iyang pay. Wa na
jud siyay makuha. That is not covered by the labor code.
That is covered by the civil code. Thats why it depends on
what he signs when he gets a cash advance because that is
a loan. Mutuum. It is signed there, deduction and sometimes
the employers put the terms to be deducted, every 15 th and
30th. Wa na ni. There is no limit to what the employer can
deduct because the moment the obligation ripens then the
obligor must pay, that is the civil code. There is no labor law
that determines settlement of advances. There is no labor
law. So it is the civil code.
So it is important, therefore, that the employer makes the
employee sign the proper forms. Suppose, there is no form
that is signed, can that happen? No that cannot happen.
Unsaon man pagkompra sa advance kung di siya magpirma
ug receipt? Naa man gyud nay pirmahan nang gidawat niya
nga kwarta. Unsaon man nimo pagadto sa finance or payroll
master nga muissue magdisburse kung wa kay gipirmahan
nga nadawawat na nimo. Di na mahimo. Naa gyud na siyay
pirmahan bisan resibo lang na gidawat niya. Pagdawat niya
atung sweldo niya, ideduct to tanan. Because he is even
granted a favor of collecting his salary ahead of time. The
employer does not look back there because he has granted
payment even before it is due under the labor code. So if he
deducts the entire amount, there is no violation. There is
only human consideration. Kung maayo ka nga employer,
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
kung dili ka gusto nga initan sa imo mga empleyado. The
relevant area of employee-employer relations maximizing
the reduction of friction between employer and employee,
that is beyond the law. Those are policies for personnel
management. But the law is, once you sign your cash
advance, your pay, kadtong tibuok nga amount ideduct.
Alright, favorite question in the bar examination with respect
to legal holidays. 1st, two legal holidays falling on the same
day, do they operate to reduce to 9 the 10 holiday pay
benefit that a worker is entitled to receive? When it is two
holidays falling on the same day and it is a monthly paid
worker, not a daily paid worker, you must take the decision
of the SC in Asian Transmission Corporation vs CA, penned
by Justice Carpio-Morales, 3rd Division, 2004 case. SC says,
unlike a bonus in which is a management prerogative,
holiday pay is a statutory benefit demandable of the law.
Since a worker is entitled to the enjoyment of 10 paid
regular holidays, the fact that the 2 holidays fall on the same
day should not operate to reduce to 9 the 10 holiday pay
benefits a worker is entitled to receive. This ruling is given
when the worker that is involved is a daily paid worker. If it is
monthly paid, this ruling does not apply. Why? Because a
monthly paid worker, all the days of the year is reckoned
with or already computed. Why? Because you receive the
same amount of pay regardless of the actual number of
days worked during the month. Kung monthly paid ka? Lahi
ba imong salary kung February nga beint-ocho dias ra
kaysa July nga 31 days? Nagkalahi ba imong salary? Di
man, pareho ra man gihapon. Pila man ang diperensyang
adlawa na na? July, 31 sa February, 28, di tulo ka adlaw ka
diperensya. Regardless of the number of actual days
worked, your pay remains the same. That means that all
days are accounted. But, if the issue is daily paid
employees, two regular holidays. Monthly paid employees
are entitled to an additional days pay if the holiday falls on a
Sunday. That is the issue in Wellington Investment and
Manufacturing Corporation vs Trajano(?), this is a monthly
paid employee, the holiday falls in a Sunday, is he entitled to
an additional days pay because that is his rest day, he is not
entitled to work? And the SC says, NO. Why? Because he is
a monthly paid employee.
Asian Transmission and Wellington Industries, those two
cases. Wellington Investments is 1995, Asian Transmission
is 2004. Almost 10 years. Remember, not only Muslims but
also Christian employees in the designated provinces and
cities are entitled to holiday pay on the Moslem holiday.
Moslem holidays that are earmarked in PD 1083. Why is
that a rule? Because, Muslims are also entitled to the
holiday pays of Christian holidays if they are in the non-
muslim areas. Is that a violation of separation of church and
state? Suppose youre asked, why is the law giving workers
privilege on religious grounds? Like Holy Thursday, Good
Friday, why? Is that not establishing religion? You answer
what the SC said. The case of _____ vs Rodriguez, when
the Eucharistic congress was made the stamp of the Bureau
of Posts. The first Eucharistic Congress held in 1932. That
was questioned by constitutionalists and the Philippine bar
association. Why is it that the government will use as a
postage stamp _________? The SC said, it is not as a
religious event that this is recognized as an event. It is now
a cultural event because it is so wide spread in the
Philippines, its celebration is repeated and repeated. Even
the nearest country Japan recognizes Christmas. Just last
month, the KSA changed its weekend. The weekend of KSA
2013-2014 TSN Page 21
is Thursday and Friday because Friday is the day of
worship. So Saturday and Sunday are working days in
Saudi Arabia. Now they have changed it to Friday and
Saturday to align it with all the other sovereigns in the
middle east. Qatar, Dubai, all those, their weekend is Friday
and Saturday. Why? because they are losing up to a billion
dollars every month because they have their weekend on
Thursday and Friday. It is dysfunctional for the rest of the
world. Because believe it or not, the weekend in China is
also Saturday and Sunday. The weekend in Japan is also
Saturday and Friday. Can you imagine they will be opening
all their banks when all the banks all over the world are
close? They cannot transact with _____ etc. They will lose
up to a billion dollars a month. Unya muingon ka they are
respecting Christian tradition when they are officially a
muslim country. Is that so? They are bowing to economic
necessity. Not cultural pervasiveness. Those are the
reasons. Thats compelling. Just like you say I am marrying
him because he has a good character. It is the character
that is compelling. So hope you remember that for your
political law.
For the first time in the US, the issue prayer issue. Can you
have prayer? Malacanang does not begin the cabinet
meeting without a prayer. Is that not establishment of
religion? You think the SC will put a stop to that practice if it
is challenged? If you were put in the shoes of the SC, will
you stop that if that is challenged? That will test your grasp
of constitutional principles.
The armpit has been opened.
Another possible bar question is the recent issues in the
United States of LGBT. The correct terminology now is
LGBT. Lesbian, Gay, Bisexual, Transsexual/Transgender. If
unions in the US recognize, what is the implication here?
Labor, if an employee dies and he is LGBT, that is a
foreigner and he has a marriage on the US that is valid. Will
the survivors/ partners (claim benefits). That is the issue. In
your Persons and Family Relations, is the marriage of the
LGBT in the United States recognized here? Because
specifically a marriage is between a man and a woman? You
have to have something to write in the bar examination,
answer which is sensible. You might write something there
that is discriminatory, that is also prohibited in labor code.
Although, Under our anti discriminatory law does not include
sexual orientation. It just includes religion, race, ethnicity,
age. It does not include sexual orientation. If you want to be
correct culturally, you must include their gender or sexuality.
That is already a failing ground. It cannot be discriminatory.
(Story about the teachings of the church and the 77 page
decision of US Supreme Court allowing gay marriage).
There is a Federal law, The Defense of Marriage Act
passed by Clintons. It says,even if you are legally married in
states which accept this kind of marriages. If you are not a
man and woman, you cannot avail of the 1000 or so
provisions for marriage couple that are found in the federal
statutes. Like the benefits under the SSS, right to decide on
the funeral and burial of your partner, you cannot avail of the
benefits under the federal law. That was challenged as
discriminatory. The one who wrote the decision of this case
ask Are these people human beings? if your answer is yes,
then you willhave to respect them. You cannot discriminate
them. That is the summary of the case, the law is
discriminatory that is why it has to be abolished. (About
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
church again, story on The Divine Right of Kings.) Father
ends his story by saying that because of academic freedom
he can say all these things about the church.
Lets us go on with our review of labor standards. If you list
down all the different labor standards benefits you will have:
1. The eight- hour labor right
2. The minimum wage
The labor standard says no person shall work for less than
the minimum wage. Who determines the minimum wage?
It is no longer the legislature. The legislature has delegated
the fixing of minimum wage, to whom? It is trusted to
Regional Tripartite Wage and Productivity Board (RTWPB).
RTWPB is created by the Wage Rationalization Act. The
minimum wage is now regional in scope and character. In
scope, according to the territory of the region. In character,
taking into consideration the living standards of that
particular region because of the basket of goods embraced
on the consumer index, demand for family living wage, and
all other criteria listed in the law. So each RTWPB sets a
minimum wage, and the minimum wage it is set according to
the classes of worker. Whether it is agricultural, that is the
qualification, whether it is commercial or industrial.
In our region, commercial and industrial are lumped together
as a class. Agricultural is further divided into two classes. 1.
Agricultural Plantation or 2. Agricultural Non-plantation
workers. Plantation workers if they are workers in a farm
land at least 24 hectares then they are considered
plantation workers and have slightly higher minimum wage.
Non-plantation, ordinary worker working for an employer
with less than 24 hectares then that is there specific
provision. The issue is what is agriculture? And agriculture is
defined in the law as farming in all its branches and among
other things includes the cultivation and tillage of soil, dairy,
the production, cultivation, growing and harvesting of any
agricultural and horticultural commodities, the raising of live
stock or poultry and any practices perform by a farmer on a
farm as an incident to or in conjunction with such farming
operations but does not include the manufacturing or
processing of sugar, sugar maze, coconuts, abaca, tobacco,
pineapple and other farm products.
If you work in a farm of sugar cane, you are an agricultural
worker and covered by agricultural minimum wage. But if
you work in a sugar refinery, or sugar mill, you are not an
agricultural farmer, you are part of the exclusion. But if you
are farm worker working on a muscovado sugar mill, are you
an industrial or agricultural worker? Have you seen a
muscavodo sugar mill? Ituslok nila ang sugar cane sa tube
cylinders then naa moagawas dinha. Ngano motuyok man?
Kay naay kabaw nga motuyok tuyok. Mogawas na dinha
ang kamay, galingon na nila. The most healthful sugar
because daghan fiber. Refined sugar wala ka kahibalo
makanser paka ana, processed food is mother of all cancer.
These days, its very difficult to look for non-processed food.
Muscovado sugar is something which a farmer does in
conjunction with or incident to farm mill operation. That is
the sugar state with each ___. Kung kinahanglan sa mag
uuma ug asukae sa iyang kape, dili man mahimo na
magkuha lang siya ug sugar cane, kinahanglan man niya ug
2013-2014 TSN Page 22
sugar sa iyang pagkaon. So that is a process done in the
farm done in conjunction with.
In the same way coconut make it to copra. Lugiton nimo
ang lubi, painitan nimo sa kalsada. Are those persons
processing it since coconut is excluded, are they agricultural
rates or are they industrial rates? Kanang nangompras,
nagsugnod ug bagol para initonn ang copras kay walay init
sa adlaw, dinha kay agricultural rates gihapon na. Pero
kanang naa sa Franklin Baker sa Sta. Cruz modawat anang
lubi nga tibuok ang mo process ana, industrial worker na
sila. That is a chemical process, which involves transitions.
Again,abaca. Kanang magbuhat anang lanot, lukdohon sa
mga netibo gikan sa bukid padulong sa ubos. Kinsa pa may
mamalit ana karon? Kana na lang magbuhat ug decorative
materials. Is there processing to make it into abaca fiber?
Are they agricultural or Industrial rate? Still agricultural rate
because no chemical, mechanical processes. That is a task
perform by a farmer in conjunction with. Tobacco? Have you
been to Ilocos? Every Saturday they sell tobacco in different
grades. Mao nang buhatong tinustos, you roll it yourself then
sindihan nimo. Is dried tobacco classified and sold that was
processed, is that agricultural or industrial rate? That I still
agricultural, you add nothing on the tobacco. Pero kung imo
nang ibaligya sa US Fortune Tobacco Corporation of Lucio
Tan and gather and grates them, starts to blend them and
produce cigarette. What is that? That is not agricultural, that
is industrial and the wage rates of the workers there are
industrial rate.
Pineapple, kanang pineapple nga gi process sa DOLE,
sapsap then hiwaon isulod ug latakanang mga
nagatrabaho dinha nga murag madre nga naay tabon sa
ilang ulo nga puti, puti pud ilang suot. What is there wage
rate, agri or non agri? It used to be agricultural because
Philippine Packing Corporation won the case in the early
sixties that is why they call themselves Philippine Packing
Corporation (Del Monte) they said that they are not adding
anything, no preservatives we are just repacking the
pineapple. We are not processing pineapple. But one day
their pineapple in can were found to be spoiled, they found it
necessary to add preservatives. Why did that happen?
Nagstrike sila sa Philippine Packing Corporation and all the
processed fucked up, gibutangan diri sa kuko, tae sa baka
sa packing house sa del monte. Sa Puerto, when you go
down from Camp Philips in Del Monte down there. Mga
truck sa Philippine Packing Corporation tag duha kabuok
puno ug pineapple. Lisod man magliko because there are
many hairpin turns there. Mangambak ang mga tao gikan sa
pampang then magdala ug sako then iitsa kay naa man
naghuwat lukso dayon sila. Dili pa kaabot ang truck didto na
sila, namaligya na silag pineapple didto sa ubos. Mao nang
naay security gurad kay dagko kayo ang truck.
They used to throw the peelings of pineapple to the sea.
The fishermen complains kay baho kaayo. They are forced
to find the use of it, and they found the use. Thats why
Philippine Packing started going around Mis Or buying
cattle. They breed cattle, they use as fattening cattle and
they mix concentrates. So kanang mga tao sa yard,
fattening cattle with pineapple pulp/peelings. Kay kanang
pineapple juice I crush nimo, ang nahibilin I feed sa cattle
and they ship 200 to 300 heads a week to manila. Kanang
mga taker dinha industrial or agricultural? Agricultural
gihapon na kanang fattening kay wala man nimo injectioni
ang cattle o unsa ba dinha. Gipakaon man gihapon na nimo,
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
gwapo gwapo lang ang gipakaon nimo dinha. But the
workers in the canning factory, the women there who are
doing slicing and putting it cans now that they add
preservatives that is already processing of pineapple and
that is industrial rate.
Kanang dinha sa Toril, the sign there in toril in front of St.
Peters funeral parlor, we buy mangoes the price for puree
300/gallon. Kanang mga tao nagatrabaho mamanit ug
mangga, mao rana ilang trabaho mamanit ug mangga. Is
that agricultural or industrial rate? That is already industrial
because that is the beginning phase of dried mangoes.
Hiwa hiwa then lutuon butangan ug asukal then ibutang sa
bulsitas kan on sa mga hapon, amerikano. They are
industrial workers because you dont normally do that.
Tanan harvest nimo imong panitan? Talagsa ra gyud na
kung nay mohangyo kanang green pa..pero exception na.
Kanang mango peeled there are made into dried mango
that is an industrial process because it involves already the
addition of chemicals. the biggest buyer of mangoes in the
Philippines is Pro Food. It has in Cebu, with 5000 women
workers. They are very efficient in peeling mangoes they
can do 150 tons a day. (Story of their efficiency). So know
whats agricultural, it is important because the rate changes.
What is the key difference? Once there is heating,
chemicals, processing, it ceases to be agricultural. If there is
a mechanical process but it is traditional mechanical
process. That is why sugarcane is squeezed and juice is
extracted in the muscovado mill process, that is traditional,
that is still agricultural. Buhat ka anang kamay, mag akob
gani nang kamay gahi kaayo sa tanan. Lethal weapon na
kung ilabay na buak imong ulo ana. Mao nay gamiton sa
pagbuhat sa kalamay sa Bohol.
Go through the definition of agriculture, wage. Go through
the dos and donts of wage. With what you cannot do with
wage, can you pay wage other than the employee? Can you
deduct from wages? Because that is how you remember the
minimum standards with respect to wages. Can you pay
wages in kind? Can you give in to the demands of your
workers to be paid in kind if they want to be paid in kind?
How should wages be paid? Can it be pay through ATM?
Can it be paid in check, can it be paid trough a bank?
Remember these rules. Dili na nato balik balikon na kay
nabungol namo sa tanan akong gisulti ana, hasta ang jokes
nahibaw an na ninyo. Hopefully you know, or just so
remember, we will see each other next meeting.
August 7, 2013
Coverage of the exam, new laws: Kasambahay law and
night workers, plus the DO, the handout which implements
Article 128. The rest of labor standards, I will assign to your
conscience. Sa ato pang istinuryahan: makonsensya unta
mo. But these laws (covered in the exam), these are not
review. You have to go over it. These will probably be asked
the year you will take the bar because the Kasambahay law
and night workers is no longer new. Night workers law is
from Article 154-161.
Well just take up the night worker law first because it is
shorter; because this DO (I gave you) is long, you might be
overwhelmed. This was just published this morning in the
Philippine Star. Tomorrow it will already take effect;
publication in 2 newspapers of general circulation. Probably
the other one is Manila Standard Today.
2013-2014 TSN Page 23
So the night workers law covers Articles 154 up to 161. This
whole set of articles is RA 10151 which was approved in
June 21, 2011. The implementing rules of RA 10151 is DO
119-12 dated January 20, 2012.
First lets look at the definition of night workers. Who is a
night worker?
Art. 154. Coverage. x x x
Night worker means any employed person whose work
requires performance of a substantial number of hours of
night work which exceeds a specified limit. This limit shall be
fixed by the Secretary of Labor after consulting the workers
representatives/labor organizations and employers.
Article 154, second paragraph says: night worker means
any employed person whose work requires performance of
a substantial number of hours of night work which exceeds a
specified limit. This limit should be fixed by the Secretary of
Labor after consulting the workers representatives, labor
organizations and employers. So you have to look at the
IRR to know what exactly a night worker is because if he
works a substantial number of hours at night, he is a night
worker. What is substantial? That is defined in the IRR. So
in the IRR, what does it say?
Section 2. Definition. As used herein, night worker
means any employed person whose work covers the period
from 10 oclock in the evening to 6 oclock the following
morning provided that the worker performs no less than
seven (7) consecutive hours of work.
It says, night workers is any employed person whose work
covers the period from 10 oclock in the evening to 6 oclock
the following morning provided that the worker performs no
less than 7 consecutive hours of work. That is the definition
given by DO 119-12 which has now become part and parcel
of the Rules to Implement the Labor Code, Book 3. If you
work 7 hours and it is within 10 in the evening to 6 in the
morning, the following morning, you are a night worker
referred to in Article 154.
Article 154 further says.. Im looking for the exclusions. Who
are excepted? Agricultural workers.
Art. 154. Coverage. This chapter shall apply to all
persons, who shall be employed or permitted or suffered to
work at night, except those employed in agriculture, stock
raising, fishing, maritime transport and inland navigation, x x
x
First paragraph in the coverage says: It applies to all
persons who shall be employed, permitted or suffered to
work at night except those employed in the agricultural,
stock raising, fishing, maritime transport and inland
navigation. The moment it is agricultural, it does not apply to
that worker even if he works at night. Please pay attention to
the definition of agriculture in Article 97, letter d. Remember
agriculture is agriculture proper and agriculture in the
secondary sense.
What is agriculture proper? Tillage of the soil, harvesting,
planting, you know all that. The second type of agriculture is
activity that is performed by a farmer at the farm IN
CONJUNCTION with farming. What does that mean?
Manufacturing, processing of sugar, coconuts, pineapple
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
and other farm products. These kinds of activities, even if
these are done at night between the hours of 10 PM to 6
AM, they are NOT included in the provisions of employment
of night workers. What provisions cover them? The ordinary
provisions of Labor Standards. Remember that ha?
Again, those that are involved in stock raising. What is stock
raising? Raising nga pagpatubo, dili nang pagpa-lumba! All
those that involve poultry, etc. Remember that poultry has a
lot of night workers! Why? There are contract growers and
the whole idea is to deprive these chickens sleep so that
theyll always be eating. Sige na sila ug kaon. Manok gud
na. So ang employees, di na sila matulog! Naay sounds,
sigeg bu-bo sa feeds, etc. If you are employed there at
night, are you covered? You are NOT. What covers you?
The ordinary provisions of Labor Law because you are
livestock raising. If you are engaged to work in a
slaughterhouse, mangingihaw ba, are you covered?
Slaughter houses, what time do they open? Mingaw pa
kaayo na pag-udto. Gabii na sila mangihaw! Here in Davao,
are slaughter house workers covered? They are NOT
covered because they are government employees! Sa City
na sila. But if you have a private slaughter house, because
you are Virginia Farms and you produce canned goods, can
you make them work at night? Are you covered? You ARE
already covered because you are a manufacturing industry.
You are not agricultural anymore. You are not stock raising.
If you are private ha. Pero if public, you are in a slaughter
house, you deal with live stock, you are not covered
because you are government.
Fishing. This has got to do with deep sea fishing, fishing
crew. Again, the basic provisions of PD 705 are repeated
here. They are NOT covered by overtime pay, they are not
covered by night shift differential. They are NOT covered by
employment of night workers. You go out to sea, you are
a part of the crew, you are paid the actual hours of work that
you do. If it is in excess of 8 hours, you are paid but you are
not paid at overtime pay; that is what PD 705 says.
Maritime transport. Sea men. These are local sea men. Do
they work at night? Yes, because a ship is operating 24
hours. You have duty hours. Are you covered? NO, you are
NOT covered by the employment of night workers. Maritime
transport, those that are operating by sea, and inland
navigation, those which are not operating at sea. Why do
you distinguish maritime transport and inland navigation?
You know that there is heavy traffic between Laguna de Bay
and Pasig, all the way to the fresh markets in Manila,
bringing the harvest from the fish pens of Laguna de Bay
and usually they travel at night. So they are excluded.
(Father talks about fish pens and fish ponds. For fish ponds,
you have to have a permit from the local government. There
is a lot of colorum in the fish pen industry. That is why
Laguna is over fished. So many fish die kay nanubra na
man. If in your locality, the pigs are dying, that means that
there are too many pigs around and there is a disease that
is spreading. Naa kay binuhi nga manok nga self
supporting, kanang sigeg suroy-suroy dira, when they go
belly up, that means there are too many of them already.
Mao nang gina-ingon nila nga gi-atay na! Patay, feet up.
That means there are just too many.)
Who are covered here? The ones that are covered, the
target beneficiaries of these provisions are the call center
agents, the Business Process Outsourcing (BPO) agents or
2013-2014 TSN Page 24
operators who man the telephone lines; customer service.
Basically for those abroad. Those in the US, in the UK. I
dont know if we have Spanish call center agents here.
These are the people that are covered. They are working at
night because the ones they are serving are operating at
another time zone. So they are serving at night here to
coincide with working day of their varied markets.
The first thing that is granted to them is this health
assessment right. Pasalamat na lang because there are
no numbers here. Wa may minimum age diri. Wa man
because their wage is clearly above our minimum wage so
the law does not have numbers. What are the benefits here?
First, health assessment.
Art. 155. Health Assessment, At their request, workers
shall have the right to undergo a health assessment without
charge and to receive advice on how to reduce or avoid
health problems associated with their work:
(a) Before taking up an assignment as a night worker;
(b) At regular intervals during such an assignment; and
(c) If they experience health problems during such an
assignment which are not caused by factors other than the
performance of night work.
With the exception of a finding of unfitness for night work,
the findings of such assessments shall not be transmitted to
others without the workers consent and shall not be used to
their detriment.
At their request, workers shall have the right to undergo a
health assessment without charge and to receive advice on
how to reduce or avoid health problems associated with
their work. When is that? At their request.
A. Before taking up an assignment as a night worker.
Question: is the employer obliged to give the newly hired
worker, even before he goes on duty, to ask him to go to a
medical check-up? Are they obliged? No, the law does not
say so. It must be at their request. At their request, workers
shall have the right to undergo a health assessment without
charge and to receive advice on how to reduce or avoid
health problems associated with their work. Letter A,
BEFORE taking up an assignment as a night worker.
B. At regular intervals during such an assignment.
And C., if they experience health problems during such an
assignment which are not caused by other factors other than
the performance of night work.
With the exception of a finding of fitness for night work, the
findings of such assessments shall not be transferred to
others without the workers consent and shall not be used to
their detriment. This is superfluous because patient and
doctor relationship is confidential. You know that already. So
this is a superfluous provision.
But if it is the employer who pays for the health assessment,
I am sure that the employer will have a way of finding out
what the result is. It cannot be used to their detriment. If
there is already something wrong with you health-wise, dont
you think it will somehow come out in your work? But the
employer already knows what the health problem is in the
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
health assessment by the medical doctors. After all, he
pays. He will never admit that he has access to those
records. Muingon ka, muhatag man gud nang doctor kay iya
man nang obligation kay muingon dayon nang employer,
kung di ka muhatag eh di mangita na lang kog lain doctor.
With the exception of a finding of unfitness for night work,
the findings of such assessment shall not be transmitted to
others. If there is a finding that you are unfit for night work,
what would that be? How could there be a finding of
unfitness for night work? Use your common sense, ug
matulog gud diay ka kung gabii na, unsaon pa man nimo
pagtrabaho, naa ra man ka diha naglingod unya natulog ka.
Ay di na mamahimo kay bisan pag tukuran nag toothpick
nang imong pilok, di man gihapon. So unfit ka for night
work. That is readily verifiable. Unfit gyud na siya doc kay
pag abot nya sa balay, di man pud siya katulog. Thats
everybodys problem. You cannot sleep during the day as
well as at night hangtod na mamahimo na lang nag
habitual, di na hinuon ka katulog.
Another provision here: Article 156, this is a benefit for them.
We have seen the health assessment benefit. This one is
mandatory facilities.
Art. 156. Mandatory Facilities. Suitable first-aid facilities
shall be made available for workers performing night work,
including arrangements where such workers, where
necessary, can be taken immediately to a place for
appropriate treatment. x x x
They can immediately go to a place for appropriate
treatment. The employers are likewise required to provide
safe and healthful working conditions and adequate facilities
such as sleeping and resting quarters in the establishment
and transportation from the work premises to the nearest
point of their residence subject to the exceptions and
guidelines to be provided by the DOLE.
Immediate place for appropriate treatment. Normally what
the employers do is they will reserve a number of beds in
the nearest hospital. That is already provided in the other
parts of the Labor Code, occupational safety. But you have
to have a certain number of workers. If you have 500
workers, you must have the nearest hospital reservation of a
given number of beds. But here, regardless of the number of
workers you have, you must have a reservation in the
hospital because you are required to have a place for
appropriate treatment that is immediately available. This is
an added expense in the part of the employer just like the
health assessment.
Next, safe and healthful working conditions.
Art. 156. Mandatory Facilities. x x x The employers are
likewise required to provide safe and healthful working
conditions and adequate or reasonable facilities such as
sleeping or resting quarters in the establishment and
transportation from the work premises to the nearest point of
their residence subject to exceptions and guidelines to be
provided by the DOLE.
If you are off from work at 1 in the evening because you
began work earlier, you should have a place to sleep until
daylight hours. You should not be forced to go home at that
late hour in the evening. The employer is required to provide
adequate or reasonable facilities such as sleeping or resting
2013-2014 TSN Page 25
quarters in the establishment. And also, if the employee
wants to go home at that late hour, the employer must
provide transportation form the work premises to the nearest
point of their residence. Why nearest point of residence?
Naa may residence nga dili maabot ug sakyanan. Sulod
man kaayo. Pareha anang SIR nga sulod na man kaayo. Di
na makasulod and sakyanan. Nearest point if the nearest
point that the vehicle can reach is your driveway. But if it is
somewhere in the inner recesses of Agdao, aw tua ra ka
dira ibilin. Maybe the employer can make arrangements with
the police to escort you. I dont know. But the obligation of
the employer here is the nearest of point of residence
subject to the exceptions and guidelines to be provided by
the DOLE.
Transfer.
Art. 157. Transfer. Night workers who are certified as unfit
for night work, due to health reasons, shall be transferred,
whenever practicable, to a similar job for which they are fit to
work.
If such transfer to a similar job is not practicable, these
workers shall be granted the same benefits as other workers
who are unable to work, or to secure employment during
such period.
A night worker certified as temporarily unfit for night work
shall be given the same protection against dismissal or
notice of dismissal as other workers who are prevented from
working for reasons of health.
Night workers who are certified as unfit for night work, due
to health reasons, shall be transferred, whenever
practicable, to a similar job for which they are fit to work.
Look at the modifiers: whenever practicable. So if it is not
practicable, the employer has no obligation. But if he has
daylight operations, then there is a possibility that there is a
place for the worker who can no longer work at night due to
health reasons.
So, best efforts. Transferring a night worker who is certified
as unfit for night work, that is the obligation of the employer.
Just best efforts. Because it says: if such transfer to a
similar job is not practicable, this worker shall be granted the
same benefits as workers who are unable to work or to
secure employment during such period. What does that
mean? That means termination benefits. And how much is
the termination benefit? If the employer is not losing, it has
to be one month salary or one month salary for every year
of service, a fraction of at least 6 months is considered one
year because that is what a worker under similar
circumstances gets. The reason why he is given benefits
could also be health reasons and if you are terminated by
reason of health, what is the benefit? It is also one month
salary or one month salary for every year of service,
whichever is higher, a fraction of at least 6 months is
considered one year. But you need to have a public officer
certify that your sickness cannot be cured with 6 months of
rest and medication. If the public health officer certifies that,
now you are entitled to termination pay due to sickness.
Here, it is verified by health assessment, is it not? You ask
for health assessment, then it is verified that you are not fit
anymore to work at night, and then there is no place for you
other than your work at night, what is the duty of the
employer? Termination benefits. Is there a need for a public
health officer to certify? There is NO NEED because the law
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
here does not provide. That is the difference between the
ordinary worker and this night worker.
Art. 157. Transfer. x x x
A night worker certified as temporarily unfit for night work
shall be given the same protection against dismissal or
notice of dismissal as other workers who are prevented from
working for reasons of health.
Now, a night worker certified as temporarily unfit for night
work shall be given the same protection and reasonable
notice of dismissal as other workers who are prevented from
working for reasons of health. In other words, the worker is
entitled to some hearing if he is just temporarily unfit for
night work. In other words, a temporary inability to work at
night cannot be used as a ground for termination.
Article 158 addresses specifically women night workers.
Art. 158. Women Night Workers. Measures shall be
taken to ensure that an alternative to night work is available
to women workers who would otherwise be called upon to
perform such work:
Measures shall be taken to ensure that an alternative to
night work is available to women workers who would
otherwise be called upon to such work. What are these
instances where there should be an alternative to night
work?
(a) Before and after childbirth, for a period of at least
sixteen (16) weeks, which shall be divided between the time
before and after childbirth;
A. Before and after child birth for a period of at least 16
weeks which shall be divided between the time before and
after childbirth. So a night worker who becomes pregnant
should be given an alternative to night work for a period of at
least 16 weeks to be divided before and after child birth. 16
weeks or 4 months. It could be 2 months before birth or 2
months after or 1 month before work and 3 months. But she
has 16 weeks to be able to demand alternative to night
work. Call agent ka unya mabdos ka, una may mahitabo
nimo? Usually they put them in the training department unya
magrecruit ug bag-o. Ikaw nay mag-train. Buntag man mo
ana mag-train. So that is an alternative. Kapait lang ana kay
kung bag-o pa ka, wa pa ka kahibaw, trainingon pa pud ka,
unsaon man nimo pag-train. Mag-training ka na hinuon pero
adlaw ka.
(b) For additional periods, in respect of which a medical
certificate is produced stating that said additional periods
are necessary for the health of the mother or child:
(1) During pregnancy;
(2) During a specified time beyond the period, after
childbirth is fixed pursuant to subparagraph (a) above, the
length of which shall be determined by the DOLE after
consulting the labor organizations and employers.
For additional periods, in respect of which a medical
certificate is procured, stating that such additional periods
are necessary for the health of the mother or the child. So
these 16 weeks are not fixed! It may be stretched. What can
stretch it? A medical certificate. Whose medical certificate? It
2013-2014 TSN Page 26
can be your medical certificate as an employee or your
newly born child. If the mother or the child needs it, you can
stretch the 16 weeks.
Alternatives during pregnancy. Thats for the whole 9
months! You can stretch the 16 weeks during pregnancy or
no. 2, during a specified time beyond the period after child
birth is fixed pursuant to subparagraph (a) above, the length
of which shall be determined by DOLE after consulting with
labor organizations and employers. So you might require
additional time after child birth. How much time? Ah, this is
subject to consultation and you have to consult the DOLE
and the employee unions, labor organization together with
the employers.
During the periods referred to in this article:
(i) A woman worker shall not be dismissed or given notice
of dismissal, except for just or authorised causes provided
for in this Code that are not connected with pregnancy,
childbirth and childcare responsibilities.
(ii) A woman worker shall not lose the benefits regarding
her status, seniority, and access to promotion which may
attach to her regular night work position.
During this time that she is working not as a call agent or
night worker but in an alternative work, she cannot be
dismissed. It says here: during the periods referred to in this
article, the woman worker shall not be dismissed or given
notice of dismissal except for just or authorized cause
provided for in this Code. It must not be connected with
pregnancy, child birth and child care responsibilities. So this
particular inconvenience to the employer, because these are
truly inconvenient: he has to look for an alternative, give you
extra hours; these cannot be used as a reason for dismissal.
And then a woman worker shall not lose the benefits
regarding here status, seniority and access to promotion
which may attach to a regular night work position. She
continues to receive whatever benefits that are owing to
those who are on their job at the regular night hours she
being not working in those night work hours but in an
alternative setting, she continues to receive. If they have
productivity bonuses every 3 months, she has to be
included in that because she must not be deprived of those
benefits regarding her status, seniority and access to
promotion which may attach to a regular night work position.
Is she already working night work? No more, she is in an
alternative work, but she will still continue to receive those
concomitant benefits as if she had been working as a night
worker. Unya maglagot na lang iyang mga kauban, wa man
ni sya nag night work unya continue man gihapon syag
receive ug benefits. Why? Because the law says so.
xxx
Pregnant women and nursing mothers may he allowed to
work at night only if a competent physician, other than the
company physician, shall certify their fitness to render night
work, and specify, in the ease of pregnant employees, the
period of the pregnancy that they can safely work.
The measures referred to in this article may include transfer
to day work where this is possible, the provision of social
security benefits or an extension of maternity leave.
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
The provisions of this article shall not have the effect of
reducing the protection and benefits connected with
maternity leave under existing laws.
And it says: pregnant women and nursing mothers may be
allowed to work at night only if a competent physician other
than the company physician shall certify the kind of fitness
for night work and specify, in the case for pregnant
employees, the period of pregnancy that they can safely
work. It does not say who will pay for this competent
physician.
The night worker can procure this independent medical
opinion other than the company physician. That is her right
and this company physician will certify that she can continue
to work or that she cannot, during the night hours. The
measures referred to in this article may include transfer to
day work if possible, provision of social security benefits or
an extension of maternity leave. The provisions of this article
shall not have the effect of reducing the protection and
benefits connected with maternity leave under existing laws.
So over and above this, you still have the regular maternity
benefits. What is the regular maternity benefit? 60 days. But
if you have caesarian, it is 78 days. So over and above na
from these provisions. So when youre given a problem,
bitbita dayon nang maternity benefits because that still
applies.
Compensation of night workers.
Art. 159. Compensation. The compensation for night
workers in the form of working time, pay or similar benefits
shall recognize the exceptional nature of night work.
The compensation of night workers in the form of working
time pay or similar benefits shall recognize the exceptional
nature of night work. What is this provision? This is a
surplusage.
Appendix
REPUBLIC ACT NO. 10151
AN ACT ALLOWING THE EMPLOYMENT OF NIGHT
WORKERS, THEREBY REPEALING ARTICLES 130 AND
131 OF PRESIDENTIAL DECREE NUMBER FOUR
HUNDRED FORTY-TWO, AS AMENDED, OTHERWISE
KNOWN AS THE LABOR CODE OF THE PHILIPPINES
Be it enacted by the Senate and House of Representatives
of the Philippines in Congress assembled:
SECTION 1. Article 130 of the Labor Code is hereby
repealed.
SEC. 2. Article 131 of the Labor Code is hereby repealed.
SEC. 3. The subsequent articles in Boot Three, Title III,
Chapter I to Chapter IV of Presidential Decree No. 442 are
hereby renumbered accordingly.
SEC. 4. A new chapter is hereby inserted after Book Three,
Title III of Presidential Decree No. 442, to read as follows:
Chapter V
Employment of Night Workers
2013-2014 TSN Page 27
Art. 154. Coverage. This chapter shall apply to all
persons, who shall be employed or permitted or suffered to
work at night, except those employed in agriculture, stock
raising, fishing, maritime transport and inland navigation,
during a period of not less than seven (7) consecutive hours,
including the interval from midnight to five oclock in the
morning, to be determined by the Secretary of Labor and
Employment, after consulting the workers
representatives/labor organizations and employers.
Night worker means any employed person whose work
requires performance of a substantial number of hours of
night work which exceeds a specified limit. This limit shall be
fixed by the Secretary of Labor after consulting the workers
representatives/labor organizations and employers.
Art. 155. Health Assessment, At their request, workers
shall have the right to undergo a health assessment without
charge and to receive advice on how to reduce or avoid
health problems associated with their work:
(a) Before taking up an assignment as a night worker;
(b) At regular intervals during such an assignment; and
(c) If they experience health problems during such an
assignment which are not caused by factors other than the
performance of night work.
With the exception of a finding of unfitness for night work,
the findings of such assessments shall not be transmitted to
others without the workers consent and shall not be used to
their detriment.
Art. 156. Mandatory Facilities. Suitable first-aid facilities
shall be made available for workers performing night work,
including arrangements where such workers, where
necessary, can be taken immediately to a place for
appropriate treatment. The employers are likewise required
to provide safe and healthful working conditions and
adequate or reasonable facilities such as sleeping or resting
quarters in the establishment and transportation from the
work premises to the nearest point of their residence subject
to exceptions and guidelines to be provided by the DOLE.
Art. 157. Transfer. Night workers who are certified as unfit
for night work, due to health reasons, shall be transferred,
whenever practicable, to a similar job for which they are fit to
work.
If such transfer to a similar job is not practicable, these
workers shall be granted the same benefits as other workers
who are unable to work, or to secure employment during
such period.
A night worker certified as temporarily unfit for night work
shall be given the same protection against dismissal or
notice of dismissal as other workers who are prevented from
working for reasons of health.
Art. 158. Women Night Workers. Measures shall be
taken to ensure that an alternative to night work is available
to women workers who would otherwise be called upon to
perform such work:
(a) Before and after childbirth, for a period of at least
sixteen (16) weeks, which shall be divided between the time
before and after childbirth;
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
(b) For additional periods, in respect of which a medical
certificate is produced stating that said additional periods
are necessary for the health of the mother or child:
(1) During pregnancy;
(2) During a specified time beyond the period, after
childbirth is fixed pursuant to subparagraph (a) above, the
length of which shall be determined by the DOLE after
consulting the labor organizations and employers.
During the periods referred to in this article:
(i) A woman worker shall not be dismissed or given notice
of dismissal, except for just or authorised causes provided
for in this Code that are not connected with pregnancy,
childbirth and childcare responsibilities.
(ii) A woman worker shall not lose the benefits regarding
her status, seniority, and access to promotion which may
attach to her regular night work position.
Pregnant women and nursing mothers may he allowed to
work at night only if a competent physician, other than the
company physician, shall certify their fitness to render night
work, and specify, in the ease of pregnant employees, the
period of the pregnancy that they can safely work.
The measures referred to in this article may include transfer
to day work where this is possible, the provision of social
security benefits or an extension of maternity leave.
The provisions of this article shall not have the effect of
reducing the protection and benefits connected with
maternity leave under existing laws.
Art. 159. Compensation. The compensation for night
workers in the form of working time, pay or similar benefits
shall recognize the exceptional nature of night work.
Art. 160. Social Services.Appropriate social services shall
be provided for night workers and, where necessary, for
workers performing night work.
Art. 161. Night Work Schedules. Before introducing work
schedules requiring the services of night workers, the
employer shall consult the workers representatives/labor
organizations concerned on the details of such schedules
and the forms of organization of night work that are best
adapted to the establishment and its personnel, as well as
on the occupational health measures and social services
which are required. In establishments employing night
workers, consultation shall take place regularly.
SEC. 5. The subsequent articles starting from Book Four,
Title I, Chapter I of Presidential Decree No. 442 are hereby
renumbered accordingly.
SEC. 6. Application. The measures referred to in this
chapter shall be applied not later than six (G) months from
the effectivity of this Act.
SEC. 7. Guidelines. The DOLE shah promulgate
appropriate regulations in addition to existing ones to ensure
protection, safety and welfare of night workers.
2013-2014 TSN Page 28
SEC. 8. Penalties. Any violation of this Act, and the rules
and regulations issued pursuant hereof shall be punished
with a fine of not less than Thirty thousand pesos
(P30,000.00) nor more than Fifty thousand pesos
(P50,000.00) or imprisonment of not less than six (6)
months, or both, at the discretion of the court. If the offense
is committed by a corporation, trust, firm, partnership or
association, or other entity, the penalty shall be imposed
upon the guilty officer or officers of such corporation, trust,
firm, partnership or association, or entity.
SEC. 9. Separability Clause. If any portion of this Act is
declared unconstitutional, the same shall not affect the
validity and effectivity of the other provisions not affected
thereby.
SEC. 10. Repealing Clause. All laws, acts, decrees,
executive orders, rules and regulations or other issuances or
parts thereof, which are inconsistent with this Act, are
hereby modified and repealed.
SEC. 11 Effectivity Clause. This Act shall take effect after
fifteen (15) days following its publication in two (2) national
newspapers of general circulation.
(second part)
Art. 160. Social Services.Appropriate social services shall
be provided for night workers and, where necessary, for
workers performing night work.
Art. 161. Night Work Schedules. Before introducing work
schedules requiring the services of night workers, the
employer shall consult the workers representatives/labor
organizations concerned on the details of such schedules
and the forms of organization of night work that are best
adapted to the establishment and its personnel, as well as
on the occupational health measures and social services
which are required. In establishments employing night
workers, consultation shall take place regularly.
Thats already in the policy of the labor code that workers
have to be consulted on matters that directly affect them.
Now, I would just like to point out that republic act 10151 has
a penal provision:
SEC. 8. Penalties. Any violation of this Act, and the rules
and regulations issued pursuant hereof shall be punished
with a fine of not less than Thirty thousand pesos
(P30,000.00) nor more than Fifty thousand pesos
(P50,000.00) or imprisonment of not less than six (6)
months, or both, at the discretion of the court. If the offense
is committed by a corporation, trust, firm, partnership or
association, or other entity, the penalty shall be imposed
upon the guilty officer or officers of such corporation, trust,
firm, partnership or association, or entity.
So there is a penal provision. Of course you have to prove it
in court, this is not a penalty that will be meted out by the
labor arbiter but it is a penal provision. So, serious ni
because there is a penal provision. The insertion of this
provision has caused the renumbering of the labor code.
Because republic 10151 is nightworks law, necessitated the
numbering of the articles into the labor code. So, there has
been a subsequent renumbering. Now, when does the
renumbering begin? It begins in article 130.
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
Now, you have the law before you. Department order no
131-13 RULES ON LABOR LAWS COMPLIANCE SYSTEM.
this implementing rules modifies article 128. Visitorial and
enforcement powers. Just a recall, in visitorial and
enforcement powers relating to the labor standards
provisions, that is hours of work, rate and other labor
standards benefits and occupational health and safety that
is what is contained in article 128. Now, the basis for the
enforcement is the verification by the department of labor
about non-observance of health and safety and labor
standards laws. They will visit the place, they will make
inspection, they examine the documents, they interview the
employees. If they find out that there is non-compliance,
they will make a report. The report will constitute finding of
facts and recommendation. Now, that is submitted to the
regional director of labor. The regional director of labor, if he
is convinced of the report and he accepts the report, he will
issue a compliance order. Inspection, report, compliance
order. The employer has 10 days to comply with the
compliance order. He can challenge it provided he can
produce documentary evidence not otherwise considered
during inspection. If it is a document not verified because
the lawyer was not able to produce it during inspection then
that is no longer consider. Supposed the inspector did grant
and look for the documents, can the employer produce it?
No more, because you should have produce it at that time. It
must have been brought up in the course of inspection.
Now, what is this now? This creates an alternative system
by which the employer voluntarily complies with labor
standards provisions or voluntarily submits himself or itself
to voluntary assessment to whether or not he has complies.
Now if he is given certificate of compliance after he has
voluntarily submitted himself for inspection. He is free for 2
years. He is assumed for compliance for 2 years from the
time the certificate of compliance is issued. Dili ka
makulbaan for two years. The only exemption is if there is a
complaint that arises. This is an alternative system. That is
now a leeway. You will be given chance to comply and its
even possible to compromise. Hangyuon nimo imong mga
employees. Hinay-hinayon nimo ug bayad ang underpay for
as long you will comply within 10 days. If there is
compromise, well and good then you will be given a
certificate of complicance and you are free for two years.
But you have to go over this because this includes not only
labor standards compliance but also for occupationa and
safety but also for child labor and trafficking. They are trying
to give you a leeway before you are prosecuted for
trafficking, child labor and child abuse. Now, the specific
organ or agency that oversees this rule and compliance is
the bureau of working conditions. They a look at the
objectives of this new rules. By the way, what is this new
rules called? Under section 1 it is just called RULES.
Collectively referred herein as rules. Father is reading
section 2. Objectives.
Section 2. objectives. the visitorial and enforcement power
of the secretary of labor and employment remains as the
primary framework in ensuring compliance with labor laws.
The promotion of voluntary compliance through the use of
developmental approach is a supplement to: a) inculcate a
culture of compliance with labor laws; b) ensure fair,
expeditious, and non-litigious settlement of disputes; c.)
encourage the use of settlement in all labor cases; and d.)
2013-2014 TSN Page 29
strengthen tripartism among the employees, employers and
the government.
So extensive use of compromise. Sa katong dili maka afford
diha, pa-assess ky ma compromise man. The government
helps you. Now, of course there is still writ of execution if
you do not comply. But you have many chances, you do not
comply with minimum wage, working hours, you do not
comply with safety as long as there is no threat in the life
and limb of the employees you are encouraged to do an
action plan. Mag action mo by way of compromise. This is to
help the government labor inspectors. Gamay ra kayo.
Region 11 tulo ra kabuok.
Important for you to know what is hazardous establishment
refers to an establishment in which the nature of work
exposes the employees to:
1. dangerous environmental elements, contaminants or
work conditions including ionizing radiation, chemicals, fire,
flammable substances, noxious components and the like;
2. construction work, logging, fire fighting, mining, quarrying,
blasting, stevedoring, dock work, deep sea fishing and
mechanized farming;
3.manufacture or handling of explosives and other
pyrotechnic products;
4.use or exposure to power driven or explosives powder
actuated tools.
5. biological agents such as bacteria, fungi, viruses,
protozoas, nematodes, and other parasites; (busa ikaw
manggamos ka ug bulinaw, hazardous na. because there is
bacteria)
6.other analogous circumstances as maybe determined by
the secretary of labor and employment.
These are the places relevant to occupational safety.
Remember what are the rules in occupational safety that is
grave and imminent danger to the life and healthy of the
employer and employees then the department of labor
inspector can recommend closure. That is still effective, that
can still be done.
Now, how about what is called dangerous occurences. You
have to be familiar with these. Depending on the gravity and
the degree. If the department of labor inspects and there is
occurrence then it can order closure.
dangerous occurences refers to any of the following:
1. explosion of boilers used for heating or power;
2. explosion of a receiver or storage container, with pressure
greater than atmospheric, of any gas or gases (including air
or any liquid resulting from the compression of such gases
or liquid);
3. bursting of revolving wheel, grinder stone or grinding
wheel operated by mechanical power;
 LABOR LAW REVIEW TRANSCRIPTION (LJC COPY)
4. collapse of crane, derrick, winch, hoist or other appliances
used in raising or lowering persons or goods or any part
thereof, the over-turning of a crane except the breakage or
chain or rope sling;
5. explosion or fire causing damage to the structure of any
room or place in which persons are employed or to any
machine contained therein resulting in the complete
suspension of ordinary work in such room or place, or
stoppage or machinery or plant for not less than 24 hours;
6. electrical short circuit or failure of electrical machinery,
plant or apparatus, attended by explosion or fire causing
structural damage thereto and involving its stoppage and
misuse for not less than 24 hours; or
7. other analogous occurences
Alright, who are the characters? LLCO labor laws
compliance officer. How would you know that he is the
LLCO? He must carry an authorization for the specific place
before he can act. Here, under this law, he can go to your
place, there is a general commissioning. He has to have a
specific order authorizing him, he cannot just go.
LLCO refers to DOLE personnel authorized to conduct joint
assessment, compliance visit, occupational safety and
health standards investigation, compliance advocacies and
advisory services, hold conciliation and mandatory
conferences, and perform such other related functions which
may be necessary in the enforcement of the labor code of
the Philippines, as amended, and other related laws.
Now, take note of this, period of correction. Wa na sa article
128, this is like creating a new law. Why do I doubt the
validity of this? Because this is not in favor of labor.
period of correction refers to the 10-day period given to the
establishment to correct the noted monetary deficiencies
determined by the labor laws compliance officer. The same
period shall be observed to correct occupational safety and
health standards deficiencies found during the compliance
visit or occupational safety and health standards
investigation.
Remediation period refers to the time given to the
establishment to correct occupational safety and health
standards deficiencies and undertake improvement of
working conditions through the implementation of
appropriate programs or services in the DOLE toolbox of
programs and services for labor laws compliance. The
remediation period shall not exceed 3 months after the
conduct of joint assessment.
the period to remedy is longer than labor standards.
Kanang closure order, naa nay bag.ong ngalan dani.
aa. work stoppage order refers to the order of the
secretary of labor and employment or his/her authorized
representative (regional director) to stop the work of any
unit, department or entire operation of an establishment
when non-compliance with occupational safety and health
standards poses imminent danger to the health and safety
of the employees in the workplace.
2013-2014 TSN Page 30
Now, if you are given a certificate of compliance because
either you have remedied the deficiencies or arrived at
compromise with respect to labor standards benefits or you
have installed health and safety device, if you are given that,
what is cover then? That is known as the tripartite certificate
of compliance with labor standards (TCCLS)
Tripartite Certificate of Compliance with Labor Standards
refers to the dole certificate issued to an establishment that
has been verified by the tripartite certification committee as
compliant with labor standards, occupational safety and
health standards, and child labor laws, with no pending case
with the dole involving violations of labor laws, and no case
of fatal accidents, permanent total/partial disability or
occupational illness within a period of one year at the time of
application as required by the department order no.115-A,
series of 2012.
Why is it called tripartite? Because it is done by 3 groups,
the employer, employee and government.
single entry approach refers to the speedy, impartial, and
inexpensive proceedings through conciliation-mediation
where parties are given the opportunity to settle amicably
the compliance deficiencies and to prevent them from
ripening into full blown disputes pursuant to department
order no.107, series of 2010 and republic act no. 10396.
This is compromise.
You can go over with this procedure. If you are non-
complaint and despite the plan of action and you do not
comply with the plan of action or the status report. That is
compromised or you fail to follow the action plan within the
mediation period, what happens to you? The LLCO will
immediately issue a compliance order and then sunod ana
writ of execution, you cannot stop that anymore, you cannot
do business, unless you comply.
I have to point out something to you. On page 11, second
paragraph from above, in case the employer continuously
refuse to provide access to records and premises despite
receipt of the notice of assessment, such refusal shall be
indicated in the notice of results which shall be issued by the
LLCO and shall constitute as violation of article 128 in
relation to article 288 of the labor code. Article 288 is the old
numbering, the correct number is article 302.
END