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Labor legislation statues, regulations & jurisprudence governing relations bet capital
& labor, by providing for certain standards of terms & conditions of EENT or providing a
legal framework w/ikululiu;n w/c these terms & conditions & the EENT relationship may
be negotiated, adjusted & admcjjmmfinistered.
2 Divisions of Labor Legislation
1. Labor Standards sets out thet minimum terms, conditions & benefits of EENT that
EERS must provide or comply w/ & to w/c EES are entitled as a matter of legal right.
- minimum requirements prescribed by existing laws, rules & regulations relating to
wages, hrs of work, cost-of-living allowance and other monetary & welfare benefits,
including occupational safety & health standards.
- material or substance to be processed
2. Labor Relations defines the status, rights & duties and the institutional
mechanisms, that govern the indiv & collective interactions of EERS, EES, or their
representatives.
- mechanism that processes the substance
Labor physical toil although it does not necessarily exclude the application of skill
(thus skilled & unskilled labor)
Skill the familiar knowledge of any art/science, united w/ readiness & dexterity in
execution/performance or in the application of the art/science to practical purposes.
Work (broader than labor) covers all forms of physical/mental exertion, or both
combined, for the attainment of some obj other than recreation/amusement per se.
Worker (broader than EE) may refer to self-employed people & those working in the
service & under the control of another, regardless of rank, title, or nature of work.
- any member of the labor force whether employed/unemployed
Employee a salaried person working for another who controls or supervises the
means, manner or method of doing the work.
Labor Law & Social Legislation
Social legislation includes laws that provide particular kinds of protection/benefits to
society in furtherance of social justice.
- promotion of the welfare of the ppl, the adoption by the Govt of measures calculated
to insure economic stability of all the component elements of society through the
maintenance of proper economic & social equilibrium in the interrelations of the
members of the community, constitutionally, through the adoption of measures legally
justifiable, or extra-constitutionally, through the exercise of powers underlying the
existence of all govts.
1987 Consti: protects the rights of workers & promote their welfare
Basic rights of workers guaranteed by the Constitution
1. to organize themselves
2. to conduct collective bargaining/negotiation w/ mgt;
3. to engage in peaceful concerted activities, including to strike in accordance w/ law;
and
4. to participate in policy & decision-making processes affecting rights & benefits
Other Consti provisions that protect the Rs/promote the welfare of workers
-org even for govt EES.. No officer/Ee of the Civil Service shall be
use. Temporary EES of the Govt shall be given such
protection as may be provided by law
Landless farmworkers may be resettled by the govt in its own agri estates.
Continuing program of urban land reform & housing
gency to promote the viability & growth of cooperatives as instruments for social
justice & economic devt
nefits, OR
may be considered for reemployment in the govt
Consti prol-labor, but recognizes the indispensable role of the private sector,
encourages private enterprise and provides incentives to needed investments
Police Power as the Basis
- the power of the govt to enact laws, w/in Constitutional limits to promote the order,
safety, health, morals & general welfare of society
- power inherent in govt to protect itself & all its constituents, & for this purpose to hold
the govt immune so far as necessary, from any limitatins imposed in the past.
1. R to manage, control, and use his property & conduct business in a manner
satisfactory to himself (just discrimination in the rate of wages paid to the skillful & to
the unskillful, to the efficient & inefficient.)
2. R to prescribe rules (they become part of the contract of EENT)
3. R to select EES & to decide when to engage them, except as restricted by statute or
valid contract, at a wage & under conditions agreeable to them.
4. R to transfer & discharge EES in order to minimize expenses & to insure stability of
the business & even to close the business, provided it is done in good faith & due to
causes beyond control.
Art 5. [Rules & Regulations] the DOLE & other govt agencies charged w/ the
administration & enforcement of this Code or any of its parts shall promulgate the
necessary IRRs. Such RRs shall become effective 15 days after announcement of their
adoption in the newspapers of gen. circulation.
Art 6. [Applicability] All Rs & benefits granted to workers under this Code shall, except
as may otherwise be provided herein, apply alike to all workers, whether agricultural or
non-agricultural.
- also applies to a govt corp incorporated under the Corporation Code.
2 & times the average harvest of 3 normal crop yrs immediately preceding the
promulgation of PD 27 (OCT 21, 1972).
The total cost of the land, including interest at the rate of 6% per annum, shall be pd
by the tenant in 15 yrs of 15 equal annual amortizations.
In case of default, the amortizations due shall be pd by the farmers cooperative in w/c
the defaulting tenant-farmer is a member, w/ the coop having a right of recourse
against him.
The govt shall guarantee such amortizations w/ shares of stock in govt-owned & controlled corps.
Art 10. [Conditions of Ownership] No title to the land acquired by the tenant-farmer
under PD 27 shall be actually issued to him unless & until he has become a full-fledged
member of a duly recognized farmers coop.
Title to the land acquired pursuant to PD 27 or the Land Reform Program of the Govt
shall not be transferable except by hereditary succession or to the Govt in accdance w/
the provisions of PD 27, the Code of Agrarian Reforms & other existing laws &
regulations.
Art 11. [Implementing Agency] The Dept of Agrarian Reform shall promulgate the
necessary rules & regulations to implement the provisions of this Chapter.
*Land for the landless battlecry dramatizing the increasingly urgent demand of the
dispossessed for a plot of earth as their place under the sun.
*CARP Law signed by Cory, declaring full land ownership in favor of the beneficiaries
of the PD 27.
Share tenancy abolished, put the agricultural leasehold sys in its stead, geared
towards eventual ownership of land by its tillers
Consti - State shall undertake an Agrarian Reform Program, and encourage & undertake
the just distribution of all agri lands, subj to such priorities & reasonable retention limits
as the Congress may prescribe,
Compensation scheme: Sec 18 of CARP: Title to all expropriated properties shall be
transferred to the State only upon full payment of compensation of their respective
owners.
Retention Limits
own/retain directly/indirectly, any public/private agri land, the size of w/c shall vary
accdg to factors governing a viable family-sized farm, such as commodity produced,
terrain, infrastructure, & soil fertility as determined by the Presidential Agrarian Reform
Council (PARC).
3 hectares may be awarded to each child of the landowner, subj to the ff
qualifications: (1.) he is at least 15 y/o, and (2) he is actually tilling the land or directly
managing the farm; Provided, that landowners whose lands have been covered b PD 27
shall be allowed to keep the area originally retained by them thereunder; Provided
further, that orig homestead grantees or direct
compulsory heirs who still own the org homestead at the time of the approval of this
Act shall retain the same areas as long as the continue to cultivate said homestead.
Lands not covered
1. Lands obtained through homestead patent:
Homestead Act gives a needy citizen a piece of land where he may build a modest
house for himself & family & plant what is necessary for subsistence & for the
satisfaction of lifes other needs.
- superior over the rights of tenants
2. Residential Subdivisions not considered agricultural. An agricultural leasehold
cannot be established on land w/c has ceased to be devoted to cultivation or farming
bcoz of its conversion into a residential subd.
3. Livestock, poultry & Swine raising lands: Sec 2 of RA 6657 w/c includes private agri
lands devoted to commercial livestock, poultry & swine raising in the definition of
commercial farms is invalid. They are covered by the agrarian reform prog of the
State.
The Greatest BlessingThe Worst Crime Frederick Taylor
- an increased output invariably gives more work to more men, & never in the history of
the world has it more than temporarily, and then for only a very short time, diminished
by the number of men at work in any trade
The Greatest Exploiter Blas Ople
- unemployment is the greatest exploiter of labor. Mass unemployment tends to leave
the EER all-powerful and the worker defenseless
More Capital Means More Jobs Adam Smith
- 2 kinds of funds: (1) the Revenue w/c is over & above what is necessary for the
maintenance; and (2) the Stock w/c is over & above shat is necessary for the EENT of
their masters.
the revenue & stock of every country and cannot increase w/o it. The increase of
revenue & stock is the increase of national wealth.
An Exploited Class J. Reynato Puno
include the totality of factors & support services designed to lift the economic status of
the beneficiaries and all other arrangemts alternative to the physical redistribution of
lands (production or profit-sharing, labor admin, distribution of shares of stock)
2. Agriculture, Agricultural Enterprise or Agricultural Activity the cultivation of the soil,
planting of crops, growing of fruit trees, incl. the harvesting of such farm products, &
other farm activities
3. Agricultural land land devoted to agricultural activity, and NOT classified as
mineral, forest, residential, commercial or industrial land
4. Agrarian Dispute any controversy relating to tenurial arrangements, whether
leasehold, tenancy, stewardship or otherwise, over lands devoted to agri
- including disputes concerning farm workers assocs, or representation of persons in
negotiating, fixing, maintaining, changing or seeking to arrange terms of conditions of
such tenurial arrangements
- including controversy relating to compensation of lands acquired under this Act &
other terms & conditions of transfer of ownership from landowners to farm workers,
tenants & other agrarian reform beneficiaries
5. Idle / Abandoned Land any agricultural land not cultivated, tilled or developed to
produce any crop nor devoted to any specific economic purpose continuously for a
period of 3 yrs immediately prior to the receipt of notice of acquisition by the govt
- but does NOT include land that has become permanently or regularly devoted to nonagricultural purposes
- does NOT include land w/c has become unproductive by reason of force majeure or F
event
6. Farmer a natural person whose primary livelihood is cultivation of land or the
production of agri crops either by himself, or primarily w/ the assistance
of his immediate farm household, whether the land is owned by him, or by another
person under a leasehold or tenancy agreement
7. Farmworker a netural person who renders service for value as an EE or laborer in
an agricultural enterprise or farm
8. Regular Farmworker a natural person who is employed on a permanent basis by an
agricultural enterprise or farm
9. Season Farmworker a natural person who is employed on a recurrent, periodic or
intermittent basis by an agricultural enterprise or farm
h. Cooperatives orgs composed primarily of small agri producers, farmers,
farmworkers or other agrarian reform beneficiaries who voluntarily organize themselves
for the purpose of pooling land, human, technological, financial or other economic
resources & operated on the principle of one member, one vote. ( a juridical person
may be a member of a coop, w/ the same Rs & duties as a natural person.
Scope: all public & private agricultural lands, incl. other lands of the pub domain
suitable for agriculture
1. All alienable & disposable lands of the pub domain devoted to or suitable for
agriculture
2. All lands of the pub domain in excess to the specific limits as determined by Congress
3. All other lands owned by the Govt devoted to or suitable for agri
4. All private lands devoted to or suitable for agri regardless of the agri products
raised/can be raised thereon
Schedule of Implementation: w/in 10 yrs from effectivity
Retention Limits: no person may own or retain, directly, any pub or private agricultural
land, the size of w/c shall vary accdg to factors governing a viable family-sized farm
- landowner may retain only 5 hectares.
- 3 hectares: each child of landowner, that is 15y/o, and is actually tilling the land or
directly managing the farm
- landowners whose lands have been covered by PD 27 shall be allowed to keep the
area originally retained by them thereunder
- the original homestead grantees or direct compulsory heirs who still own the orig
homestead shall retain the same areas as long as they continue to cultivate said
homestead
case the area selected by landowner is tenanted, the tenant shall have the option
whether to remain therein, be a beneficiary of the same, or another agri land w/
similar/comparable features; (b) in case the tenant chooses to remain in the retained
ares, he shall be considered a leaseholder & shall lose his R as a leaseholder to the land
retained by the landowner. The tenant must exercise this option w/in 1 yr fr the time
the landowner manifests his choice of the area for retention.
- Upon Acts effectivity, any sale, disposition, lease, mgt contract or transfer of position
of private lands executed by the orig landowner in violation of this Act shall be null &
void. Provided, that those executed prior to this Act shall be valid only when registered
w the Reg of Deeds w/in 3 months after effectivity.
Presidental Agrarian Reform Council (PARC) shall provide the implementing rules
- upon recommendation by the Provincial Agrarian Reform coordinating Committee,
may declare certain provinces/regions as priority land reform areas
Multinational Corps all lands of the pub domain leased, held, or possessed by multi
corps or assocs, and other lands owned by the govt, or govt-owned/-controlled corps,
assocs, institutions or entities, devoted to existing & operational agribusiness or agroindustrial enterprises, operated by multicorps shall be programmed for acquisition &
distribution immediately upon effictivity
Ancestral Lands shall include, but not limited to, lands in the actual, continuous &
open possession & occupation of the community and its members, provided that the
Torrens System shall be respected
- shall be protected to ensure their economic, social & cultural well-being
- in the autonomous regions, the respective legislature may enact their own laws on
ancestral domain subj to the provisions of the Consti, this Act and other national laws.
Exemptions & Exclusions
1. Lands actually, directly & exclusively used for parks, wildlife, forest reserves,
reforestation, fish sanctuaries and breeding grounds, watersheds and mangroves
2. Private lands actually, directly & exclusively used for prawn farms & fishponds
(provided that said prawn farms & fishponds have not been distributed and Cert of
Land Ownership Award issued to ARP.
3. Lands actually, directly & exclusively used & found to be necessary for national
defense, school sites & campuses, incl experimental farm stations operated by
pub/private schools for educational purposes, seeds and seedlings research and pilot
production center, church sites & convents apputenat therety, mosque sites & Islamic
centers appurtenant thereto, communal burial grounds & cemeteries, penal colonies &
penal farms actually worked by inmates, got & private research & quarantine centers
the compensation, the DAR shall take immediate possession of the land & shall request
the Register of Deeds to issue a TCT in the name of the RP.
4. Any party who disagrees w/ the decision may bring the matter to the court
Determination of Just Compensation
- cost of acquisition of the land
- current value of like properties,
- its nature, actual used and income
- the sworn valuation by the owner,
- tax declarations
- assessment made by the govt assessors
Incentives for voluntary offers of sale addtl 5% cash
Priority of Qualified Beneficiaries
1. Agricultural lessees & share tenants
2. Regular farmworkers
3. Seasonal farmworkers
4. Other farm workers
5. Actual tillers/occupants of public lands
6. Collective or cooperatives of the above beneficiaries
7. Others directly working on the land
*Provided: children of landowners who are qualified shall be given preference in the
distribution of the land of their parents
*Provided further: actual tenant-tillers in the landholding shall not be ejected/removed
therefrom.
Transferability of Acquired lands by beneficiaries may not be sold, transferred or
qualified beneficiaries for 10 yrs
*Provided, that the children/spouse of the transferor shall have a R to repurchase the
land fr the govt/LBP w/in 2 yrs
Standing crops at the time of acquisition shall be retained by the landowner, Dar shall
give a reasonable time to harvest the same
Corporate Farms
- in case land cannot be divided directly, shall be owned collectively by the workerbeneficiaries who shall form a workers cooperative or assoc w/c will deal w/ the corp
- indiv members of the coop shall be provided w/ homelots or small farmlots for their
family use taken fr the land owned by the coop
- State recognizes that there is not enough agricultural land to be divided & distributed
to each farmer & regular farmworker so that each one can own his economic-size family
farm.
- Answer: simultaneous industrialization aimed at developing a self-reliant &
independent national economy effectively controlled by Filipinos
- State may, in the interest of national welfare or defense, establish & operate vital
industries
- Implementation of the prog shall be community-based
- State shall recognize & enforce the Rs of rural women to own & control land
- State shall provide incentives to landowners to invest the proceeds of the agrarian
reform prog to promote industrialization, EENT & privatization of the pub sector
enterprises
Added Definition
1. Rural women women who are engaged directly/indirectly in farming and/or fishing
as their source of livelihood, whether paid or unpaid, regular or seasonal, or in food
preparation, managing the household, caring for the children, & other similar activities
2. Landless beneficiary one who owns less than 3 hectares of agri land
Added Exception to Retention Limits
- Provincial, city & mun govt units acquiring private agri lands by expropriation to be
used for actual, direct & exclusive pub purposes, such as roads & bridges, pub markets,
school sites, resettlement sites, local govt facilities, pub parks & brgy plazas or squares
consistent shall not be subj to the 5-hectare retention limit
Order of Priority
- 3 hectares each to the 1st 2 beneficiaries
- only when these beneficiaries have rcvd 3 hectares each, shall the remaining portion
of the landholding, if any, be distributed to other beneficiaries
Payment by Beneficiaries payable to LBP in 30 annual amortizations at 6% interest
per annum
Support shall be extended equally to women & men beneficiaries
Facts:
Landicho from 1949 until his death in 1972, afterwhich, his
tenancy rights were succeded by his son, petitioner Francisco Landicho (the other
petitioners were Buenaventura (Franciscos son), and Federico (Franciscos brother),
helped him cultivate the land
he Aragons
through a notarized kasulatan for a consideration of P1,000, but petitioners
continued cultivating the land until 1987 when Francisco executed another notarized
kasulatan thru w/c he surrendered his tenancy rights for a consideration of P3,000.
Aragons for P50,000 to respondent Felix Sia, who in turn converted the same to a
residential subd w/o a DAR clearance and ejected the petitioners therefrom.
ners filed a protest before the DAR alleging that they are the tenants of the
lands and claimed that they are entitled to a disturbance compensation. They alleged
that they were fooled into signing over their tenancy rights thru the machinations of the
Aragons.
petitioners are barred by estoppel, laches and prescription
Issue 1: WON petitioners are tenants of the land
Held: A tenant is defined as a person who, himself and w/ the aid available from w/in
his immediate farm household, cultivates the land belonging to, or possessed by
another, w/ the latters consent for purposes of production, sharing the produce w/ the
landholder under the share tenancy system, or paying to the landholder a price certain
or ascertainable in produce or in money or both, under the leasehold tenancy system
For a tenancy relationship to exist, all of the ff essential requisites must be present:
1) the parties are the landowner & the tenant
2) the subj matter is agricultural land
3) there is consent bet the parties
& underpayment of wages, 13th month pay & retirement benefits before the Labor
Arbiter. He alleged discrimination & unfair treatment, and intense pressure on the part
of the resp bank forced him to retire at the prime of his life.
Issue 1: WON there was constructive dismissal
Held: No.
Constructive dismissal quitting because continued EENT is rendered impossible,
unreasonable or unlikely, as an offer involving a demotion in rank & a dimunition in
pay. May also mean an act of clear discrimination, insensibility or disdain by an EER
may become so unbearable on the part of the EE so as to foreclose any choice on his
part except to resign
Petitioner claims he was discriminated against as new hires were given higher salaries
than he was receiving.
Discrimination failure to treat all persons equally when no reasonable distinction can
be found bet those favored & those not favored. It must be clearly established that (1)
there is no reasonable distinction for classification that can be obtained bet persons
belonging to the same class, and (2) persons belonging to the same class have not
been treated alike
Petitioner failed to established that he possessed the same skills, competencies &
expertise as those newly hired to eliminate the possibility of substantial distinction that
may warrant unequal treatment bet them.
Petitioner contends that in cases of constructive dismissal, the burden of proof rests on
the EER to show that the EE was dismissed on a valid & just cause. But this legal
principle presupposes that there is indeed an involuntary separation from EENT & the
facts attendant to such forced separation was clearly established, w/c the petitioner
failed to do. It was him who availed of the voluntary retirement program. And absent
the showing of duress, the presumption is that it was done by him voluntarily.
While the state promotes the utmost protection of labor against capital, it does not
mean that the working class is upheld in all labor dispute. The law also recognizes the
rights of management.
PRE-EMPLOYMENT
Art 12. It is the policy of the State:
1. to promote and maintain a state of full employment through improved manpower
training, allocation and utilization;
2. to protect every citizen desiring to work locally/overseas by securing for him the best
possible terms and condition of employment;
Private recruitment entity any person/assoc engaged in the recruitment & placement
of workers, locally/overseas without charging, directly/indirectly any fee from the
workers or employers.
Authority a document issued by the DOLE authorizing a person/assoc to engage in
recruitment & placement activities as a private recruitment entity
Seaman any person employed in a vessel engaged in maritime navigation
Overseas EENT EENT of a worker outside the PH
Emigrant any person, worker or otherwise, who emigrates to a foreign country by
virtue of an immigrant visa or resident permit to its equivalent in the country of
destination
Art 14. EMPLOYMENT PROMOTION
The Sec of Labor shall have the power & authority:
1. to organize & establish new EENT offices in addition to existing EENT offices under
the DOLE as the need arises;
2. to organize & establish a nationwide job clearance & information system to inform
applicants registering w/ a particular EENT office of job opportunities in other parts of
the country as well as job opportunities abroad;
3. to develop & organize a program that will facilitate occupational industrial and
geographical mobility of labor and provide assistance in the relocation of workers from
one area to another; and
4. to require any person, establishment, org, or institution to submit such EENT
information as may be prescribed by the Sec of Labor.
Bureau of Local Employment (BLE) assigned the effective allocation of manpower
resources in local
Ph Overseas Employment Administration (POEA) for overseas employment
Art 15. BUREAU OF EMPLOYMENT SERVICES (now BLE)
- primarily responsible for developing & monitoring a comprehensive EENT program.
Powers & Duties:
1. To formulate & develop plans & programs to implement the EENT promotion
objectives of this Title;
2. To establish & maintain a registration and/or licensing system to regulate private
sector participation in the recruitment & placement of workers, locally & overseas, and
to secure the best possible terms & conditions of EENT for Filipino contract workers and
compliance therewith under such rules & regulations as may be issued by the DOLE;
3. To formulate & develop EENT programs designed to benefit disadvantaged groups &
communities;
4. To establish & maintain a registration and/or work permit system to regulate the
EENT of aliens;
5. To develop a labor market information system in aid of proper manpower and
development planning;
- Special program for EENT of students (SPES) during summer or semestral breaks
- Work appreciation seminars & conferences and
- Hiring of workers in infrastructure projects (WHIP)
created WHIP, a program w/c requires the DPWH and private contractors
to hire 30% of skilled and 50% unskilled labor requirements from the area where the
project is being undertaken
Art 16. PRIVATE RECRUITMENT:
GR: No person/entity other than the public EENT offices, shall engage in the
recruitment & placement of workers.
1. Public EEnt offices
2. Private recruitment entities
3. Private EENT agencies
4. Shipping or manning agents or representatives
5. The POEA
6. Construction contractors if authorized to operate by DOLE and the Construction
Industry Authority
7. Members of the diplomatic corps although hirings done by them have to be
processed through the POEA
8. Other persons/entities as may be authorized by the Sec of DOLE
Art 17. OVERSEAS EMPLOYMENT DEVT BOARD
POEA has taken over the functions of the Overseas Employment Development Board
(OEDB) and the National Seamen Board (NSB)
OFW a Filipino worker who is to be engaged, is engaged or has been engaged in a
renumenerated activity in a country of which he/shee is not a legal resident
2 Classifications
1. Land-based contract workers other than a seaman including workers ingaged in
offshore activities whose occupation requires that majority of his working/gainful hrs
are spent on land
2. Sea-based those employed in a vessel engaged in maritime navigation
Principal Functions of the POEA
1. Formulation, implementation and monitoring of overseas employment of Filipino
workers;
2. Protection of their rights to fair and equitable employment practices;
3. Deployment of Filipino workers through govt-to-govt hiring
Regulatory Functions
1. Regulate private sector participation in the recruitment & overseas placement of
workers through its licensing and registration system;
2. Formulate & implement, in coordination w/ appropriate entities concerned, when
necessary, a system for promoting and monitoring the overseas EEnt of Filipino workers
taking into consideration their welfare and the domestic manpower requirements;
3. Inform migrant workers not only of their rights as workers but also of their rights as
human beings;
4. Instruct and guide the workers how to assert their rights and provide the available
mechanism to redress violation of their rights;
5. In the recruitment & placement of workers to service the requirements for trained
and competent Filipino workers of foreign govts and their instrumentalities, and such
other employers as public interest may require, deploy only to countries:
a. Where the PH has concluded Bilateral labor agreements or arrangements;
b. Observing and/or complying w/ the international laws and standards of migrant
workers;
c. Guaranteeing to protect the rights of Filipino migrant workers.
Adjudicatory Functions
1. Administrative cases involving violations of licensing rules & regulations and
registration of recruitment and EEnt agencies/entities; and
2. Disciplinary action cases and other special cases w/c are administrative in character,
involving employers, principals, contracting partners and Filipino migrant workers.
Jurisdiction of POEA
1. all cases w/c are administrative in character, involving or arising out of violations of
rules & regulations relating to licensing & registration of recruitment and employment
agencies/entities; and
2. disciplinary action cases and other special cases w/c are administrative in character,
involving EERS, principals, contracting partners and Filipino migrant workers
3. NO jurisdiction to enforce foreign judgment (must be brought before the regular
courts). POEA is an administrative (not a court), exercising adjudicatory or quasi-judicial
functions
4. NO jurisdiction over torts
Grounds for Disciplinary Action
1. Commission of a felony punishable by Ph laws or by the laws of the host country;
2. Drug addiction/possession or trafficking of prohibited drugs;
3. Desertion or abandonment;
4. Drunkenness, esp where the laws of the host country prohibit intoxicating drinks;
5. Gambling, esp where the laws of the host country prohibits the same;
6. Initiating/joining a strike or work stoppage where thelaws of the host country
prohibit strikes or similar actions;
7. Creating trouble at the worksite or in the vessel;
8. Embezzlement of company funds or of moneys and properties of a fellow worker
entrusted for delivery to kins or relatives in the PH;
9. Theft/robbery;
10. Prostitution;
11. Vandalism or destroying company property;
Ex: in case of seamen must be given written notice of the charges against him, and
afforded a formal investigation where he can defend himself or thru a representative
before he can be dismissed & disembarked. The EER is required to furnish him w/ 2
notices: (1) written notice of charge; and (2) written notice of dismissal
Contracted but not Deployed: Perfected Contract
Death benefits of Seafarers
- entitled to death and other benefits under w/c ever is higher (foreign law or Ph law)
- entitled to death benefits if death occurs during the term of his contract of
employment, even if death is not workDisability loss or impairment of a physical or mental function resulting from
injury/sickness
Permanent disability the inability of a worker to perform his job for more than 120
days, regardless of WON he loses the use of any part of his body
Total Disability disablement of an EE to earn wages in the same kind of work of
similar nature that he was trained for or accustomed to perform, or any kind of work
w/c a person of his mentality and attainments could do. It does not mean absolute
helplessness.
In disability compensation, it is not the injury w/c is compensated, but rather it is the
incapacity to work resulting in the impairment of ones earning capacity
Disability benefits by seamen a matter governed not only by medical findings but by
law & contract
- shall be paid beginning on the 1st day of such disability. If caused by an
injury/sickness it shall not be paid longer than 120 cons
injury/sickness still requires medical attendance beyond 120 days
but not to exceed 240 days from onset of disability in w/c case benefit for temporary
total disability shall be paid.
In case of differing medical assessment
a.) when a seafarer sustains a work-related illness/injury while on board, his
fitness/unfitness to work shall be determined by the company-designated physician.
b.) If the physician appointed by the seafarer disagrees w/ the company-designated
physicians assessment, the opinion of a 3rd doctor may be agreed jointly bet the EER
and the seafarer to be the decision final and binding on them
Agencies Given the Duty to promote the welfare & rights of migrant workers:
1. DFA
2. DOLE
3. POEA
e. Officials/EES of the DOLE or other govt agencies directly involved in overseas EENT
program and their relatives w/in the 4th degree of consanguinity or affinity; and
f. Those whose License have been previously cancelled o revoked
Art 29: NON-TRANSFERABILITY OF LICENSE AUTHORITY
1. It may be used only b the one in whose favor it was issued; hence, it cannot be
assigned, conveyed or transferred to any other person/entity.
2. It must be used only in the place stated in the license. Thus, could only undertake
recruitment & placement activities in the region where the license was granted.
3. The recruitment & placement activities must be undertaken at their authorized official
addresses.
4. Provincial recruitment and/or job fairs may be allowed only when authorized by POEA
in writing.
* Change of ownership of single proprietorship licensed to engage in overseas EENT
shall cause the automatic revocation of the license.
Art 30: BONDS
The Sec of Labor shall promulgate a schedule of fees for the registration of all
applicants for license or authority.
Art 31. BONDS
All applicants for license/authority shall post such cash and surety bonds as determined
by the Sec of Labor including escrow deposits.
Purposes:
1. To guarantee compliance w/ prescribed recruitment procedures, rules & regulations,
and terms & conditions of EENT; and
2. To ensure prompt & effective recourse against such companies when held liable for
applicants/workers claim
Exemption from Garnishment
judgment creditor of the agency.
be replenished by the agency w/in 15 days from notice
from the POEA. Failure to replenish the same w/in the said pd shall cause the
suspension of the license
Note: POEA has the power to enforce liability under cash & surety bonds.
Art 32: FEES TO BE PAID BY WORKERS
commenced EENT
ll always be covered w/ the approp receipt clearly showing the amount
paid.
POEA has the power to:
1. Suspend/cancel the license; and
2. Order the refund/reimbursement of such illegally collected fees
Prohibition on Charging Fees
1. Placement fees cannot be collected from a hired worker until he has signed the EENT
contract & shall be covered by receipts clearly showing the amt paid
2. Manning agencies shall not charge any fee from seafarer-applicants for its
recruitment & placement services. All expenses for hiring seamen shall be shouldered
by foreign shipping principals.
3. No other fees/charges, including processing fees shall be imposed against any
worker.
Art 34 & Section 6 RA 8042: PROHIBITED PRACTICES:
It shall be unlawful for any indiv, entity, licensee or holder of authority:
1. To charge greater amt than that specified in the schedule of allowable fees (illegal
exaction);
2. To furnish any false info in relation to recruitment/EENT (false information);
3. To give any false notice, testimony, etc. or commit any act of misrepresentation to
secure a license or authority (false statements);
4. To induce or attempt to induce a worker to quit his job in lieu of another offer unless
it is designed to liberate the worker from oppressive terms of EENT (pirating);
5. To influence of attempt to influence any person/entity no to employ any worker who
has not applied for EENT through his agency (influencing not to employ);
country may be
suid in and found liable by Ph courts
CH 3: MISCELLANEOUS PROVISIONS (as amended by RA 8042)
Illegal Recruitment any act of (CETCHUP) canvassing, enlisting, transporting,
contracting, utilizing, or procuring workers and includes (CRAP) contract services,
referrals, or advertising, promising for employment abroad, whether for profit or not,
when undertaken by a non-licensee or non-holder of authority; Provided that any such
non-licensee or non-holder of authority who in any manner, offers or promises for a fee
employment abroad to 2 or more persons shall be deemed so engaged. Also includes
the act of reprocessing workers through a job order that pertains to nonexistent work,
work different from the actual overseas work, or work w/ a different EER whether
registered or not w/ the POEA
by a non-licensee or non-holder of authority or a licensee or a holder of authority:
1. Those prohibited practices under Art 34;
2. Failure to actually deploy w/o valid reason as determined by DOLE;
3. Failure to reimburse expenses incurred by the worker in connection w/ his
documentation & processing for purposes of deployment, in cases where the
deployment does not actually take place w/o the workers fault; and
4. Recruitment & placement activities of agents or representatives appointed by a
licensee, whose appointments were not previously authorized by the POEA shall
likewise constitute illegal recruitment.
Elements of Illegal Recruitment
1. The offender is a licensee/non-licensee or holder/non-holder of authority engaged in
the recruitment & placement of workers; and
2. The offender undertakes either any recruitment activities devided under Art 13 (b) or
any prohibited practices in Art 34
Simple Illegal Recruitment Where a person:
1. undertakes any recruitment activity defined under Art 13(b) or any prohibited
practice enumerated under Arts 34 & 38 of the LC; and
2. does not have a license or authority to lawfully engage in the recruitment &
placement of any workers.
Illegal Recruitment in Large Scale further requires a 3rd element:
3. The offense is committed against 3/more persons, individually or as a group
Illegal Recruitment as Economic Sabotage:
resident aliens are not required to secure a working permit. They are
required to secure their Alien Employment Registration Cert (AERC)
Exemption from Permit
1. All members of the Diplomatic service and foreign govt officials accredited by and w/
reciprocity arrangement w/ the Ph govt;
2. Officers and staff of international orgs of w/c the PH is a member, and their
legitimate spouses desiring to work in the PH;
3. Foreign nationals elected as members of Governing Board who do not occupy any
other position, but have only voting rights in the corp;
4. All foreign nationals granted exemption by law;
3. Name of trade, occupation or job in w/c the apprentice shall be trained and the dates
on w/c such training will begin and will proximately end;
4. Approp number of hrs of OJT w/ compulsory theoretical instruction w/c the
apprentice shall undergo during his training;
5. Schedule of the work processes of the trade/occupation in w/c the apprentice shall
be trained and the approx. time to be spent on the job in each process;
6. Graduated scale of wages to be paid to the apprentice;
7. Probationary pd of the apprentice during wc either party ay summarily terminate
their agreemt; and
8. A clause that if the EER is unable to fulfill his training oblig, he may transfer the
agreemt, w/ the consent of the apprentice to any other EER who is willing to assume
such oblig.
Working Hrs shall not exceed the max number of hrs prescribed by law, if any, for a
worker of his age and sex. Time spent in compulsorily theoretical instruction shall be
considered hrs of work. An apprentice not otherwise barred by law from working 8hrs
may be requisted by his EER to work overtime and paid accordingly.
Art 62: SIGNING OF APPRENTICESHIP AGREEMENT
Who signs:
1. The apprentice, if of age, otherwise, by his parent or guardian, or in the latters
absence, by an authorized rep of TESDA; and
2. EER or his duly authorized rep
Art 63: VENUE OF APPRENTICESHIP PROGRAM
1. Within the sponsoring firm, establishment or entity; or
2. Within a DOLE training center or other public training institutions; or
3. Initial training in trade fundamentals in a training center or other institutions w/
subsequent actual work participation w/in the sponsoring firm or entity during the final
stage of training.
Art 64: SPONSORING OF APPRENTICESHIP PROGRAMS
BY:
1. The plant, shop or premises of the EER or firm concerned if the apprenticeship
program is organized by an indiv EER or firm;
2. The premises of one or several firms designated for the purpose by the organizer of
the program if such organizer is an assoc of EERS, civic group and the like; and
3. DOLE Training Center or other public training institutions w/ w/c the TESDA has
made approp arrangements.
Upon cursory reading, the subject clause appears facially neutral, for it applies to all
OFWs. However, a closer examination reveals that the subject clause has a
discriminatory intent against, and an invidious impact on, OFWs at two levels:
First, OFWs with employment contracts of less than one year vis--vis OFWs with
employment contracts of one year or more;
Second, among OFWs with employment contracts of more than one year; and
Third, OFWs vis--vis local workers with fixed-period employment;
The subject clause singles out one classification of OFWs and burdens it with a peculiar
disadvantage.
Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative
of the right of petitioner and other OFWs to equal protection.
The subject clause or for three months for every year of the unexpired term,
whichever is less in the 5th paragraph of Section 10 of Republic Act No. 8042 is
DECLARED UNCONSTITUTIONAL.
People of the Philippines (petitioner) v Jamilosa (repondent)
GR No. 169076 January 23, 2007
Callejo, Sr.,:
FACTS:
Sometime in the months of January to February, 1996, representing to have the
capacity, authority or license to contract, enlist and deploy or transport workers for
overseas employment, did then and there, willfully, unlawfully and criminally recruit,
contract and promise to deploy, for a fee the herein complainants, namely, Imelda D.
Bamba, Geraldine M. Lagman and Alma E. Singh, for work or employment in Los
Angeles, California, U.S.A. in Nursing Home and Care Center.
Prosecution presented three witnesses, namely Imelda Bamba, Geraldine Lagman and
Alma Singh.
According to Bamba, she met the appellant on a bus. She was on her way to SM North
Edsa where she was a company nurse. Appellant introduced himself as a recruiter of
workers for employment abroad. Appellant told her he could help her get employed as
nurse. Appellant gave his pager number and instructed her to contact him is shes
interested. Sometime in January 1996, appellant fetched her at her office, went to her
house and gave him the necessary documents and handed to appellant the amount of
US$300.00 and the latter showed her a photocopy of her supposed US visa. However,
the appellant did not issue a receipt for the said money. Thereafter, appellant told her
to resign from her work because she was booked with Northwest Airlines and to leave
for USA on Feb, 1996. On the scheduled departure, appellant failed to show up.
Instead, called and informed her that he failed to give the passport and US visa
because she had to go to province because his wife died. Trying to contact him to the
supposed residence and hotel where he temporarily resided, but to no avail.
Winess Lagman testified that she is a registered nurse. In January 1996, she went to
SM North Edsa to visit her cousin Bamba. At that time Bamba informed her that she
was going to meet to appellant. Bamba invited Lagman to go with her. The appellant
convinced them of his ability to send them abroad. On their next meeting, Lagman
handed to the latter the necessary documents and an amount of US$300.00 and 2
bottles of black label without any receipt issued by the appellant. Four days after their
meeting, a telephone company called her because her number was appearing in
appellants cell phone documents. The caller is trying to locate him as he was a
swindler. She became suspicious and told Bamba about the matter. One week before
her scheduled flight, appellant told her he could not meet them because his mother
passed away.
Lastly, Alma Singh, who is also a registered nurse, declared that she first met the
appellant at SM North Edsa when Imelda Bamba introduced the latter to her. Appellant
told her that he is an undercover agent of FBI and he could fix her US visa. On their
next meeting, she gave all the pertinent documents. Thereafter, she gave P10,000 to
the appellant covering half price of her plane ticket. They paged the appellant through
his beeper to set up another appointment but the appellant avoided them as he had
many things to do.
The accused Jamilosa testified on direct examination that he never told Bamba that he
could get her a job in USA, the truth being that she wanted to
leave SM as company nurse because she was having a problem thereat. Bamba called
him several times, seeking advices from him. He started courting Bamba and went out
dating until latter became his girlfriend. He met Lagman and Singh thru Bamba. As
complainants seeking advice on how to apply for jobs abroad, lest he be charged as a
recruiter, he made Bamba, Lagman and Singh sign separate certifications, all to effect
that he never recruited them and no money was involved. Bamba filed an illegal
recruitment case against him because they quarreled and separated.
RTC rendered judgment finding accused guilty beyond reasonable doubt of illegal
recruitment in large scale.
ISSUE: Illegal Recruitment in a large scale?
HELD: Recruitment and placement" refers to any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals,
contract services, promising or advertising for employment, locally or abroad, whether
for profit or not. Provided, That any person or entity which, in any manner, offers or
promises for a fee employment to two or more persons shall be deemed engaged in
recruitment and placement.
Illegal recruitment shall mean any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring, or procuring workers and includes referring, contract
services, promising or advertising for employment abroad, whether for profit or not,
ii. Managerial employees those whose primary duty consists of the mgt of the
establishment in w/c they are employed or of a dept/subd thereof, and to other
officers/members of the managerial staff
- under the direct supervision of the EER, and assist in the planning, organizing,
staffing, directing controlling, communicating and in making decisions in attaining the
companys set goals & objectives
a. Includes supervisiors (only as regards Art 82) likewise responsible for the effective
& efficient operation of their respective depts
iii. Field personnel non-agricultural employees who regularly perform their duties
away from the principal place of business or branch office of the employer and whose
actual hours of work in the field cannot be determined w/ reasonable certainty
c. those whose performance of their job/service is not supervised by the ER or his rep,
the workplace being away from the principal office and whose hours & days of work
cannot be determined w reasonable certainty; hence they are paid specific amount for
rendering specific service or performing specific work.
personnel
-agri work away from the office, the
fact that they have no choice but to remain on board the vessel, they are still under
constant supervision by the ER thru the vessels patron/master
iv. Employers family members who are dependent on him for support
v. Domestic helpers
Employee any person who performs services for an EER in w/c either or both mental
& physical efforts are used and who receives compensation for such services, where
there is an EER-EE relationship
TESTS OF EENT Relship:
i. Right of Control Test where the person for whim the services are performed
reserves a right to control not only the end to be achieved but also the means to be
sued in reaching such end.
Plus: the courts added the existing economic conditions prevailing bet the parties (like
payrolls) in determining the existence of EER-EE Relship.
ELEMENTS OF EE-EER RELSHIP (Four-fold Test)
i. the selection and engagement of the EE;
ii. the payment of wages;
iii. the power of dismissal;
iv. the employers power to control the EE w/ respect to the means & methods by w/c
the work is to be accomplished (most important)
Independent contractors can employ others to work & accomplish contemplated
result w/o consent of contractee, while EE cannot substitute another in his place w/o
consent of his EER.
2. The Economic Dependence Test observes the need to consider the existing
conditions bet the parties
Best approach: Apply the two-tiered test involving:
1. the putative employers power to control the EE w/ respect to the means and
methods by w/c the work is to be accomplished; and
2. the underlying economic realities of the activity or relationship
a. the extent to w/c the services performed are an integral part of the employers
business;
b. to the extent of the workers investment in equipment and facilities;
c. the nature and degree of control exercised by the employer;
d. the workers opportunity for profit and loss;
e. the amount of initiative, skill, judgment or foresight required for the success of the
claimed independent enterprise;
f. the permanency and duration of the relationship between the worker and the
employer; and
g. the degree of dependency of the worker upon the employer for his continued
employment in that line of business
2. where it is less than 60 minutes (but not less than 20minutes) must be with full pay
when:
1. where work is non-manual (does not involve strenuous physical exertion);
2. where the establishment regularly operates not less than 16hrs a day
3. in cases of actual or impending emergencies or there is urgent work to be performed
on machineries, equipment or installations to avoid serious loss w/c the ER would
otherwise suffer;
Requisites
1. EEs voluntarily agree in writing and waive their OT pay;
2. No diminution in the salary and other fringe benefits of the EEs already existing;
3. Work is not physically strenuous and they are provided w/ adequate coffee breaks in
the morning & afternoon;
4. Value of benefits is equal to the compensation due them;
5. OT pay will become due and demandable if they are permitted/made to work beyond
4:30 pm; and
6. The arrangement is of temporary duration.
Note: The 8-hr work period does not include the meal break. EEs may leave the
company premises as long as they return to their posts on time.
Art 86 NIGHT SHIFT DIFFERENTIAL
- at least 10% of his regular wage for each hr of work performed bet 10PM and 6AM
- given as premium for working at a time for sleep & rest
Rates
1. OT on a regular work day at least 25% thereof
2. OT on a holiday or rest day at least 30% thereof
* CBA may stipulate higher OT pay rate
Actual Work Days as Divisor
PALEA & PAL Supervisors Assoc (PALSA), commenced an action
v PAL in the CIR praying that the latter be ordered to revise the method of computing
the basic daily & hourly rates of its monthly-salaried EEs and necessarily to pay them
their accrued salary differentials
PALs Formula:
monthly salary x 12/365 days in a yr = Basic daily rate
basic daily rate/8 Basic hourly rate
Proposed Formula:
Monthly salary x 12/actual working days = BDR
BDR/8 = BHR
Paid Unworked days of a monthly-paid EE
- ER may stipulate that EEs monthly salary constitutes payment for all the days of the
month incl rest days & holidays if when converted into its daily equivalent would still
GR: An express instruction from the ER to the EE to render OT work is not required for
the EE to be entitled to OT pay. It is sufficient that the EE is permitted or suffered to
work. Neither is an express approval by a supervisor needed.
s, written authority after office hrs is required for the EE to be
entitled to compensation
work.
work could be
done (i.e. brownout, machine repair, lack of rawmats)
OT Work of Seamen whether or not the sailors are entitled to OT pay is not whether
they were on board and cannot leave ship beyond the regular 8
working hrs a day, but whether they actually rendered service in excess of 8 hrs
Action to Recover Compensation
- estoppel & laches cannot be invoked against EEs bcoz that would be contrary to the
spirit of the 8-hr Labor Law, under w/c the laborers cannot waive their R to extra
compensation
- OT pay in arrears retroacts to the date when services were actually rendered
GR: Waiver or quitclaim not a waiver of OT pay. Any stipulation in the contract that
the laborer shall work beyond the regular 8 hrs w/o addtl compensation for the extra
hrs is contrary to law and null and void
Waiver of OT Pay
GR: OT pay cannot be waived expressly or impliedly. Any contrary stipulation is null and
void.
1. When the waiver is made in consideration of benefits & privileges w/c may be more
than what will accrue to them in OT pay; and
2. Compressed workweek (CWW) the number of work days is reduced but the number
of work hrs in a day is increased to more than 8, but no OT pay may be claimed.
Requisites of Compressed Workweek to be valid:
1. The scheme is expressly and voluntarily supported by majority of the EEs affected;
2. In firms using substances, or operating in conditions that are hazardous to health, a
certification is needed from an accredited safety org or the firms safety committee that
work beyond 8hrs is w/in the limits/levels of exposure set by DOLEs occupational safety
& health standards;
3. The DOLE Regional Office is notified.
total number of hrs worked per day shall not exceed 12hrs. (Work performed beyond
2. EEs under a CWW scheme are entitled to meal periods of at least 60 minutes. The R
of EEs to restday, holiday pay, rest day pay or leave in accdance w/ law/CBA/company
practice shall not be impaired.
3. Adoption of the CW scheme shall in no case result in diminution of existing benefits.
Reversion to the normal 8-hr work day shall not constitute diminution of benefits.
(Reversion is considered a legitimate exercise of mgt prerogative, provided that the ER
shall give the EEs prior notice of such reversion w/in a reasonable period of time.
* EE may validly waive the R to OT under a CWW program, provided he did so
voluntarily, w/ full understanding of what he was doing and in consideration for the quit
claim is credible & reasonable.
Note: EEs promoted from rank-and-file to supervisory lose their OT pay and other
benefits under Art 82-96
Illustrations of OT Computations
1. Regular Workdays
Reg Basic Wage + 25% thereof
2. Legal or Regular Holidays
Holiday Wage Rate (200%) + 30% thereof
3. Rest Days or Special Holidays
Rest day/Special Holiday wage rate (130%) + 30% thereof
4. Scheduled Rest Day w/c is also a Special Holiday
Rest day & special holiday wage rate (150%) + 30% thereof
5. Scheduled rest day w/c is also a legal or regular holiday
Rest day & legal holiday wage rate (260%) + 30% thereof
6. Double holiday
Double holiday wage rate (400%) + 30% thereof
0% of his regular daily wage when both regular holidays fall on the
same day and he does not work (Law provides that he shall get his regular daily wage
of each regular holiday)
ets
400%
OT pay integrated in Basic Salary (composite/package pay/all-inclusive salary) not
illegal nor unusual for executives or managers
-managerial EEs, there must be:
1. A clear written agreement
2. Agreed legal wage rate and OT pay computed separately are equal or higher than
the separate amounts legally due
FLEXIBLE WORK ARRANGEMENTS
- alternative work arrangements or schedules other than the traditional or standard
work hrs, workdays or workweek. ERs may adopt them after due consultation w/ EEs,
taking into acct the adverse consequence of the situation on the performance and
financial condition of the company.
- Its effectivity and implementation shall be temporary.
- Should be threshed out by the ER and EE
- DOLE Reg Ofc must be notified prior to implementation
- In addition to CWW, the FWAs include:
1. Reduction of workdays where normal workdays per week are reduced but should
not last for more than 6 months
2. Rotation of workers where the EEs are rotated/alternately provided work w/in the
workweek
3. Forced leave EEs are required to go on leave for several days or weeks, utilizing
their leave credits if there are any
4. Broken-time schedule the work schedule is not continuous but the number of hrs
w/in the day or week is not reduced
5. Flexi-holiday schedule Ees agree to avail themselves of the holidays at some other
days, provided that there is no diminution of existing benefits as a result of such
arrangement
Art 88. UNDERTIME NOT OFFSET BY OVERTIME
- Whether on the same day or any other day is prohibited by law
- Permission given to the EE to go on leave o some other day of the week shall not
exempt ER from paying the addtl compensation
available, the weekly rest pd may be scheduled to meed the EEs choice for at least 2
days a month
ii. If worked
1. 1st 8hrs 200%
2. excess of 8hrs Plus 30% of hourly rate of said day
b. if it is an EEs rest day
i. if unworked 100%
ii. if worked
1. 1st 8hrs plus 30% of 200%
2. excess of 8 hrs plus 30% of hourly rate of said day
2. For declared SPECIAL DAYS such as Special Non-Working Day, Special Public Holiday,
Special National Holiday and nationwide special days
a. If unworked no pay, unless there is a favorable company policy, practice or CBA
granting payment of wages on special days even if unworked
b. If worked
i. 1st 8hrs plus 30% of the daily rate of 100%
ii. excess of 8hrs plus 30% of hourly rate on said day
c. Falling on the EEs rest day and if worked
i. 1st 8hrs plus 50% of the daily rate of 100%
ii. excess of 8hrs plus 30% of hourly rate on said day
3. For those declared as SPECIAL WORKING HOLIDAY
- for work performed an EE is entitled only to his basic rate
List of Special Days
Proc. 459
A. Regular Holidays
1. New Years Day
2. Maundy Thursday
3. Good Friday
4. Araw ng Kagitingan
5. Labor Day
6. Independence Day
7. National Heroes Day
8. Bonifacio Day
9. Christmas Day