SAN BEDA COLLEGE OF LAW MEMORY AID in LABOR LAW PRELIMINARY TITLE CHAPTER I GENERAL PROVISIONS ART 1. NAME OF DECREE PDF

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SAN BEDA COLLEGE OF LAW MEMORY AID in LABOR LAW Any form of reproduction of this copy is strictly prohibited!!! PRELIMINARY TITLE 7.Right to Participate in Policy & CHAPTER I Decision-Making Processes affecting GENERAL PROVISIONS their rights and benefits as may be provided by law ☛ RELATED LAWS...

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SAN BEDA COLLEGE OF LAW MEMORY AID in LABOR LAW PRELIMINARY TITLE CHAPTER I GENERAL PROVISIONS ART 1. NAME OF DE... Joel Cadano

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SAN BEDA COLLEGE OF LAW

MEMORY AID in LABOR LAW Any form of reproduction of this copy is strictly prohibited!!!

PRELIMINARY TITLE CHAPTER I GENERAL PROVISIONS ✍ ART 1. NAME OF DECREE ☛ LABOR LEGISLATION - Consists of statutes, regulations and jurisprudence governing the relations between capital and labor, by providing for certain standards of terms and conditions of employment or providing a legal framework within which these terms and conditions and the employment relationship may be negotiated, adjusted and administered. It is divided into labor standards and labor relations. ☛ LABOR STANDARDS - Are the minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost-of-living allowance, and other monetary and welfare benefits, including occupational safety, and health standards. ☛ LABOR RELATIONS LAW - defines the status, rights, and duties and the institutional mechanisms that govern the individual and collective interactions of employers, employees or their representatives. - The law which seeks to stabilize the relation between employer and employee, to forestall and thresh out their differences through the encouragement of collective bargaining and the settlement of labor disputes through conciliation, mediation, and arbitration.

7.Right to Participate in Policy & Decision-Making Processes affecting their rights and benefits as may be provided by law

☛ RELATED LAWS: 1. CIVIL CODE: see Arts. 1700, 1701and 1703 2. REVISED PENAL CODE: Art. 289 3. OTHERS: SSS Law, GSIS Law, Agrarian Reform Law, the 13th month pay law, the Magna Carta for Public Health Workers, etc.

☛ RATIONALE : - The raison d’ etre of labor laws is the POLICE POWER of the State ✍ ART 3. DECLARATION OF BASIC

POLICY The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, age or creed, and regulate the relations between workers and employers. The State shall assure the right of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work.

☛ EMPLOYER - one who employs the services of others; one for whom employees work and who pays their wages or salaries.

☛ EMPLOYEE - one who works for an employer; a person working for salary or wages

✍ ART. 2. DATE OF EFFECTIVITY

✍ ART 4. CONSTRUCTION IN FAVOR OF LABOR

☛ The Labor Code took effect on November 1, 1974 (six months after its promulgation on May 1,1974)

☛ CONSTRUCTION IN FAVOR OF LABOR CLAUSE -this is with a view to apply

☛ SEVEN (7) BASIC RIGHTS OF WORKERS AS GUARANTEED BY THE CONSTITUTION (OCESHLP):

the Code to the greater number of employees to enable them to avail of the benefits under the law (Abella vs. NLRC). The working man’s welfare should be the primordial consideration.

1. Right to Organize 2. Right to Conduct Collective Bargaining or Negotiation with Management 3. Right to Engage in Peaceful Concerted Activities including strike in accordance with law 4. Right to Enjoy Security of Tenure 5.Right to Work Under Humane Conditions 6.Right to Receive a Living Wage

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This rule is applicable if there is a doubt as to the meaning of the legal or contractual provision. If the provision is clear and unambiguous, it must be applied in accordance with its express terms.

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These laws should be interpreted with a view to the fact that they are remedial in nature, they are enacted to better the lot

LABOR LAW COMMITTEE: JUBERT JAY C. ANDRION, Chairperson, PAULITO DEJESUS, EDP MEMBERS: RJ Nolasco, Michelle Marquez, JoMarie Lazaro, AnnaLeah Lee, Grace Tenorio, Allan Alda, Jono DeGuzman, Elmer Guerzon, Angeluz Torres, Sheila Sulit, Liezel DeLeon, Ana Marie Gayos, Liza Sato , Mac-Mac Romero, Filmar Callejo, Sally Silva, Joy Mejia, Howard Arzadon

SAN BEDA COLLEGE OF LAW

MEMORY AID in LABOR LAW Any form of reproduction of this copy is strictly prohibited!!!

and promote the welfare of the members of the laboring class. -

Reservation of essential attributes of sovereign power is read into contracts as a postulate of the legal order. Courts adopt a liberal approach that favors the exercise of labor rights. The mandate under Art. 4 is simply to resolve doubt, if any, in favor of labor. If there is no doubt in implementing and interpreting the law, labor will enjoy no built-in advantage and the law will have to be applied as it is.

✍ ART 6. APPLICABILITY ☛ AGRICULTURAL OR FARM WORKER one employed in an agricultural or farm enterprise and assigned to perform tasks which are directly related to the agricultural activities of the employer, such as cultivation and tillage of the soil, dairying, growing and harvesting of any agricultural and horticultural commodities, the raising of livestock or poultry, and any activities performed by a farmer as an incident to or in conjunction with such farming operations. -

There may be in one employer both agricultural as well as industrial workers.

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PURPOSE of the provision: intended to encourage workers to seek employment in agricultural enterprises instead of migrating to already overcrowded urban areas to find work in industrial establishments

☛ MANAGEMENT RIGHTS: (CPST) C P S T

Right to conduct business Right to prescribe rules Right to select employees Right to transfer or discharge employees

☛ MANAGEMENT PREROGATIVE Except as limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including: HIRING, WORK ASSIGNMENTS, WORKING METHODS, TIME PLACE AND MANNER OF WORK, TOOLS TO BE USED, PROCESSES TO BE FOLLOWED, SUPERVISION OF WORKERS, WORKING REGULATIONS, TRANSFER OF EMPLOYEES, WORK SUPERVISION, LAY-OFF OF WORKERS, AND DISCIPLINE, DISMISSAL AND RECALL OF WORKERS. (HW5T2PLSD)

Thus, so long as management prerogatives are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of employees under special law or under valid agreements, it shall be upheld. ✍ ART 5. RULES AND REGULATIONS - The rules and regulations issued by the DOLE shall become effective 15 days after announcement of their adoption in newspapers of general circulation.

- The LC applies to all workers, whether agricultural or non-agricultural, including employees in a government corporation incorporated under the Corporation Code.

FARM EMPLOYERFARM WORKER RELATIONSHI P - The lease is one of labor with the agricultural laborer as the lessor of his services and the farm employer as the lessee - The agricultural worker works for the farm employer and for his labor he receives a salary or wage, regardless of whether the employer makes a profit.

TENANCY RELATIONSHIP

- It is the landowner who is the lessor and the tenant the lessee of agricultural land

- The tenant derives his income from the agricultural produce or harvest

LABOR LAW COMMITTEE: JUBERT JAY C. ANDRION, Chairperson, PAULITO DEJESUS, EDP MEMBERS: RJ Nolasco, Michelle Marquez, JoMarie Lazaro, AnnaLeah Lee, Grace Tenorio, Allan Alda, Jono DeGuzman, Elmer Guerzon, Angeluz Torres, Sheila Sulit, Liezel DeLeon, Ana Marie Gayos, Liza Sato , Mac-Mac Romero, Filmar Callejo, Sally Silva, Joy Mejia, Howard Arzadon

Page 2 of 70

☛ WORKER -any member of the labor force, whether employed or unemployed

CHAPTER II EMANCIPATION OF TENANTS (Note: not included as per SC Memo)

✍ ART 7-11 -

Share tenancy has been abolished placing in its stead leasehold system.

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Under Art. 8, the land covered by operation land transfer must be private agricultural land, tenanted, primarily devoted to rice and/or corn, and more than seven hectares in are.

☛ Present retention limits: -

5 hectares per landowner and 3 hectares per child provided the child is:

1. Is at least 15 years of age; and 2. Actually tilling the land or directly managing the farm

☛ EXCEPTIONS: -

those covered by homestead patents those covered by PD 27

☛ EMANCIPATION PATENT - is the title issued to the tenant upon compliance with all the requirements of the government. It represents the full emancipation pf the tenant from the bondage of the soil.

☛ PROHIBITION AGAINST ALIENATION IS INTENDED TO: 1. Preserve the landholding in the hands of the owner-tiller and his heirs; 2. minimize land speculation; and 3. prevent a return to the regime of land ownership by a few.

BOOK ONE PRE-EMPLOYMENT TITLE I RECRUITMENT AND PLACEMENT OF WORKERS CHAPTER I GENERAL PROVISIONS ✍ ART 13. DEFINITIONS

☛ RECRUITMENT AND PLACEMENT - 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. (CEC-TUCP) (RCPA) -The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. The proviso merely creates the presumption.

✍ ART 16. PRIVATE RECRUITMENT ☛ ENTITIES AUTHORIZED TO RECRUIT 1. Public employment offices 2. Private recruitment entities; private employment agencies 3. Shipping or manning agents or representatives 4. The POEA 5. Construction contractors if authorized by the DOLE and the Construction Industry Authority 6. Members of the diplomatic corps (but hirings must also go thru POEA) 7. Other persons or entities as may be authorized by the DOLE secretary

☛ DOCUMENTATION OF WORKERS: 1. Contract Processing – workers hired thru the POEA shall be issued the individual employment contract and such other documents as may be necessary for travel 2. Passport Documentation 3. Visa Arrangement

✍ ART 17. (POEA) -

POEA has taken over the functions of the OEDB

☛ ADJUDICATORY FUNCTIONS OF THE POEA : a. All cases which are administrative in character, involving or arising out of violations of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities; and b. Disciplinary action cases and other special cases which are administrative in character,

involving employers, principals, contracting partners and Filipino Migrant Workers

☛ JURISDICTION TRANSFERRED TO THE LABOR ARBITERS OF THE NLRC : a. claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. ☛ Venue – Money claims or claims for damages should be filed before the Regional Arbitration branch of the NLRC where the complainant resides or where the principal office of the respondent/employer is situated, at the option of the complainant. ☛ Compromise Agreement - Consistent with the policy encouraging amicable settlement of labor disputes, Sec 10, RA 8042 allows resolution by compromise of cases filed with the NLRC. ☛ PREMATURE TERMINATION OF CONTRACT - Where the worker’s employment contract is terminated long before its agreed termination date, and the termination is not shown to be based on lawful or valid grounds, the employer will be ordered to pay the workers their salaries corresponding to the unexpired portion of their employment contract. (Tierra Int’l Construction Corp. vs. NLRC). HOWEVER, under R.A. 8042, if the illegal dismissal took place on or after July 15, 1995, the illegally dismissed overseas worker shall be entitled to the full reimbursement of his placement fee with interest at the rate of 12% per annum plus salary for the unexpired portion of his employment contract or for 3 mos. for every year of the unexpired term whichever is LESS.

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Claims for death and burial benefits involving seamen OCWs which the POEA has jurisdiction are not the same as the claims against the State Insurance Fund of the LC.

- The basis for the award of backwages is the parties” employment contract, stipulating the wages and benefits. -

The fact that the employee has signed a satisfaction receipt does not result in waiver; the law does not consider as

valid any agreement to receive less compensation than what the worker is entitled to recover. (MR Yard Crew Union vs. PNR)

✍ ART 18. BAN ON DIRECT-HIRING ☛ Direct hiring of Filipino workers by a foreign employer is not allowed. ☛ EXCEPTIONS : the members of the diplomatic corps; international organizations; such other employers as may be allowed by the Department of Labor and employment 1. name hirees – individual workers who are able to secure contracts for overseas employment on their own efforts and representations without the assistance or participation or any agency

☛ RATIONALE OF THE PROHIBITION -

Filipino workers hired directly by a foreign employer, without government intervention may not be assured of the best possible terms and conditions of work. The foreign employer must also be protected and may chance upon a Filipino worker who do not possess sufficient knowledge for which he is employed.

☛ MINIMUM EMPLOYMENT CONDITIONS OF OVERSEAS EMPLOYMENT:

2. 3. 4. 5. 6.

7. 8.

1. Guaranteed wages for regular working hours and overtime pay for services rendered beyond regular working hours in accordance with the standards established by the Administration Free Transportation from point of hire to site of employment and return; Free emergency medical and dental treatment and facilities; Just causes for termination of the contract or of the services of the workers; Workmen’s compensation benefits and war hazard protection; Repatriation of worker’s remains and properties in case of death to the point of hire, or if this is not possible the possible disposition thereof Assistance on remittance of worker’s salaries, allowances or allotments to his beneficiaries; and Free and adequate board and lodging facilities or compensatory food allowance at prevailing cost of living standards at the jobsite.

✍ ART 22. MANDATORY REMITTANCE OF FOREIGN EXCHANGE EARNINGS

program and their relatives within the 4th degree of consanguinity or affinity; or 6. Those whose license has been previously canceled or revoked.

☛ MANDATORY REMITTANCE REQUIREMENTS: 1. Seamen or mariners: 80% of the basic salary; 2. Workers for Filipino Contractors and Construction Companies: 70% of the basic salary; 3. Doctors, engineers, teachers, nurses, and other professionals whose employment contract provide for lodging facilities: same as #2 4. All other professionals without board and lodging: 50% of the basic salary; 5. Domestic and other service of workers; 50% of the basic salary.

✍ ART 25. PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT AND PLACEMENT OF WORKERS ☛ QUALIFICATIONS FOR PARTICIPATION IN THE OVERSEAS EMPLOYMENT PROGRAM: 1. Filipino citizens, partnerships or corporations at least 75% of the authorized and voting capital stock of which is owned and controlled by Filipino citizens; 2. Minimum capitalization of 1M in case of single proprietorship or partnership and a minimum of 1M paid-up capital for corporations; 3. Those not otherwise disqualified by law or these guidelines to engage in the recruitment and placement of workers for overseas employment ☛ DISQUALIFICATIONS: 1. Travel agencies and sales agencies of airline companies; 2. Officers or members of the board of any corporation or members in a partnership engaged in the business of a travel agency; 3. Corporations and partnerships, when any of its officers, members of the board or partners, is also an officer, member of the board or partner of a corporation engaged in the business of a travel agency. 4. Persons, partnerships, or corporations which have derogatory records; 5. Persons employed in the Department of Labor or in other government agencies directly involved in overseas employment

CHAPTER II REGULATIONS OF RECRUITMENT AND PLACEMENT ACTIVITIES ✍ ART 29. NON-TRANSFERABILITY OF LICENSE OR AUTHORITY -

No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority, nor may such license or authority be transferred, conveyed or assigned to any other person or entity.

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Licensees or holders of authority or their duly authorized representatives may as a rule, undertake recruitment and placement activities only at their authorized official addresses.

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Change of ownership or relationship of single proprietorship licensed to engage in overseas employment shall cause the automatic revocation of the license.

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All overseas landbased workers shall be provided both life and personal accident insurance.

☛ GROUNDS FOR DISCIPLINARY ACTION (Under the MWA of 1995) ; 1. Commission of a felony punishable by the laws of the Philippines or by the host country; 2. Drug addiction or possession or trafficking of prohibited drugs; 3. Desertion or abandonment; 4. Drunkenness, especially where the laws of the of the host country prohibit the same; 5. Gambling, especially where the laws of the host country prohibit the same; 6. Initiating or joining a strike or work stoppage where the laws 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 money an properties of a fellow worker entrusted for delivery to kins or relatives in the Philippines; 9. Theft or robbery; 10. Prostitution; 11. Vandalism or destroying company property;

12. Gunrunning or possession of deadly weapons; 13. Unjust refusal to depart for the worksite after all employment and travel documents have been duly approved by the appropriate government agency; and 14. Violation of the laws and sacred practices of the host country and unjustified breach of government approved employment contract by a worker.

✍ ART 31. BONDS -

Cash bond filed by applicants for license or authority is not subject to garnishment by judgment creditor of agency

✍ ART 32. FEES TO BE PAID BY WORKERS -

Suspension or cancellation of licenses may include award of damages to repair the injury caused to its victims.

✍ ART 34. PROHIBITED PRACTICES -

A supplementary contract beneficial to worker not violative of protection afforded by the State to workers.

✍ ART 35. SUSPENSION AND/OR CANCELLATION OF LICENSE OR AUTHORITY ☛ NON-LICENSEE OR NON-HOLDER OF AUTHORITY - any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor, or whose license or authority has been suspended, revoked, or cancelled by the POEA and the Secretary.

MISCELLANEOUS PROVISIONS ✍ ART 38. ILLEGAL RECRUITMENT (as per RA 8042 otherwise known as the Migrant Workers’ Act of 1995) ☛ ILLEGAL RECRUITMENT - Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers and includes referring contract services, promising or advertising for employment abroad, whether for profit or not when unde...