Labor Law and Legislations
Atty. Jess Archee R. Real
References: Labor Code of the Philippines and Labor Code annotated by Chan;
Law
1987 Constitution
General Laws
Special Laws
Labor
Verb
Noun
Labor Law Provisions in the Philippines
1987 Constitution
The Labor Code
-Labor Standards
-Labor Relations
New Civil Code
Other Special Laws (GSIS, SSS, Kasambahay Law, etc.)
Constitutional Provisions
1. Article II. Declaration of Principles and State Policies
Section 18. The State affirms labor as a primary social economic force. It shall
protect the rights of workers and promote their welfare.
> this is the FIRST of two Protection-to-labor clauses
Constitutional Provisions
1. Article II. Declaration of Principles and State Policies
2. Article III. Bill of Rights
• Section 1. Due process and equal protection
• Section 4. Freedom of speech, of expression, or of the press, or of the right of
the people to peaceably assemble and petition the government for redress of
grievances.
• Freedom of Association - Right of public and private sector employees to form
unions, associations, or societies for purposes not contrary to law shall not be
abridged
Constitutional Provisions
1. Article II. Declaration of Principles and State Policies
2. Article III. Bill of Rights
• Non-impairment of obligations of contracts
• Right to speedy disposition of cases in judicial, quasi-judicial or administrative
bodies
• Prohibition against involuntary servitude
Constitutional Provisions
1.
2.
3.
Article II. Declaration of Principles and State Policies
Article III. Bill of Rights
Article XIII. Social Justice and Human Rights
• Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized,
and promote full employment and equality of employment opportunities for all.
• It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to
security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and benefits as may be provided by law.
• The State shall promote the principle of shared responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.
• The State shall regulate the relations between workers and employers, recognizing the right of labor to its just
share in the fruits of production and the right of enterprises to reasonable returns to investments, and to
expansion and growth.
> this is the SECOND of two Protection-to-labor clauses
Research the following:
1. What is the difference between: Picketing vs. Strike?
2. What is the difference between: Principle of Co-determination vs Principle
of Shared Responsibility?
3. Supreme Court Case: PAL vs. NLRC (G.R. No. 85985 August 13, 1993)
• Question: What principle is applicable to the formulation of a Code of Discipline among
employees?
4. Know the concept of due process and its applicabiity to Labor cases
May cases be filed on violation of the
foregoing constitutional provisions?
• NO.
• Why? The labor-related provisions are:
• Merely statements of principles
• NOT self-executing
Labor Case
• Dispute between employer and employees
In Labor cases, is RIGHT TO COUNSEL
mandatory?
• No.
• Lopez Doctrine:
• Lopez v. Alturas Group of Companies:
• The right to counsel is neither indispensable nor mandatory. It
becomes mandatory only in two (2) situations:
1. When the employee himself requests for counsel; or
2. When he manifests that he wants a formal hearing on the
charges against him, in which case, he should be assisted by
counsel.
Dismissal
• We will discuss this in Pre-Finals
Is HEARING before an employee may be
dismissed mandatory?
No. As per Perez Doctrine (see 2009 case of Perez v. PT & T):
Hearing is no longer mandatory EXCEPT in the ff. cases:
1.
2.
3.
4.
When requested by the employee in writing; or
When substantial evidentiary disputes exist; or
When a company rule or practice requires it; or
When similar circumstances justify it.
New Civil Code of the Philippines
• Art. 1700. The relations between capital and labor are not merely
contractual. They are so impressed with public interest that labor
contracts must yield to the common good. Therefore, such contracts
are subject to the special laws on labor unions, collective bargaining,
strikes and lockouts, closed shop, wages, working conditions, hours of
labor and similar subjects.
New Civil Code of the Philippines
• Art. 1702. In case of doubt, all labor legislation and all labor contracts
shall be construed in favor of the safety and decent living for the
laborer.
• In relation to:
• Labor Code ART. 4. Construction in favor of labor. - All doubts in the implementation and
interpretation of the provisions of this Code, including its implementing rules and
regulations, shall be resolved in favor of labor.
Recruitment and Placement
• Definitions:
“Worker” means any member of the labor force, whether employed or
unemployed.
Art. 13. Definitions:
“Recruitment and placement” refers to any act of: (CETCHUP)
• 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.
Art. 13. Definitions:
“Private fee-charging employment agency” means any person or entity
engaged in recruitment and placement of workers for a fee which is
charged, directly or indirectly, from the workers or employers or both.
“Private recruitment entity” means any person or association engaged
in the recruitment and placement of workers, locally or overseas,
without charging, directly or indirectly, any fee from the workers or
employers.
Art. 13. Definitions:
“License” means a document issued by the Department of Labor
authorizing a person or entity to operate a private employment agency.
“Authority” means a document issued by the Department of Labor
authorizing a person or association to engage in recruitment and
placement activities as a private recruitment entity.
Art. 13. Definitions:
“Seaman” means any person employed in a vessel engaged in maritime
navigation.
“Overseas employment” means employment of a worker outside the
Philippines.
“Emigrant” means any person, worker or otherwise, who emigrates to
a foreign country by virtue of an immigrant visa or resident permit or
its equivalent in the country of destination.
What is Illegal Recruitment?
Any act of (CETCHUP) canvassing, enlisting, contracting, transporting, utilizing,
hiring or procuring workers and includes referring, contract services, promising
or advertising for employment abroad,
whether for profit or not,
when undertaken by a non-license or non-holder of authority contemplated
under Art 13 (F) of Presidential Decree No. 442, as amended otherwise known
as the Labor Code of the Philippines: Provided, That any such non-licensee or
non-holder who, in any manner, offers or promises for a fee employment
abroad to two or more persons shall be deemed so engaged. (sec. 6, RA 8042).
What is Illegal Recruitment?
It shall likewise include the following acts, whether committed
by any persons, whether a non-licensee, non-holder, licensee or
holder of authority.
(a) To charge or accept directly or indirectly any amount greater than the
specified in the schedule of allowable fees prescribed by the Secretary of
Labor and Employment, or to make a worker pay any amount greater than
that actually received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in
relation to recruitment or employment;
What is Illegal Recruitment?
(c) To give any false notice, testimony, information or document or
commit any act of misrepresentation for the purpose of securing a
license or authority under the Labor Code;
(d) To induce or attempt to induce a worker already employed to quit
his employment in order to offer him another unless the transfer is
designed to liberate a worker from oppressive terms and conditions of
employment;
(e) To influence or attempt to influence any persons or entity not to
employ any worker who has not applied for employment through his
agency;
What is Illegal Recruitment?
(f) To engage in the recruitment of placement of workers in jobs
harmful to public health or morality or to dignity of the Republic of the
Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary of
Labor and Employment or by his duly authorized representative;
(h) To fail to submit reports on the status of employment, placement
vacancies, remittances of foreign exchange earnings, separations from
jobs, departures and such other matters or information as may be
required by the Secretary of Labor and Employment;
What is Illegal Recruitment?
(i) To substitute or alter to the prejudice of the worker, employment
contracts approved and verified by the Department of Labor and
Employment from the time of actual signing thereof by the parties up
to and including the period of the expiration of the same without the
approval of the Department of Labor and Employment;
(j) For an officer or agent of a recruitment or placement agency to
become an officer or member of the Board of any corporation engaged
in travel agency or to be engaged directly on indirectly in the
management of a travel agency;
What is Illegal Recruitment?
(k) To withhold or deny travel documents from applicant workers before
departure for monetary or financial considerations other than those
authorized under the Labor Code and its implementing rules and regulations;
(l) Failure to actually deploy without valid reasons as determined by the
Department of Labor and Employment; and
(m) Failure to reimburse expenses incurred by the workers in connection
with his documentation and processing for purposes of deployment, in cases
where the deployment does not actually take place without the worker's
fault. Illegal recruitment when committed by a syndicate or in large scale
shall be considered as offense involving economic sabotage.
Illegal Recruitment Involving Economic Sabotage
• By a Syndicate:
Illegal recruitment is deemed committed by a syndicate
carried out by a group of three (3) or more persons conspiring or
confederating with one another.
• In Large Scale:
It is deemed committed in large scale if committed against three
(3) or more persons individually or as a group.
Who are liable?
The persons criminally liable for the above offenses are the principals,
accomplices and accessories. In case of juridical persons, the officers
having control, management or direction of their business shall be
liable.
Some form of illegal recruitment include:
• Leaving the country as a tourist but with the intention of working
abroad
• Escort Services – tourist/workers “escorted” at the country’s airports
and seaports
• By Correspondence – applicants are encouraged by the recruiter to
comply with employment requirements and placements through mail
• Blind Ads – fraudulent and misleading advertisements promising
facility of employment
Reference:https://www.philippine-embassy.org.sg/labor/labor-advisories/illegal-recruitment/
Some form of illegal recruitment include:
• Au Pair – an inter-cultural program wherein a host family sponsors a person
to study language and culture for a monthly allowance in exchange for a
home to stay in
• Backdoor Exit – going out of the country through some airports and
seaports in the southern part of the Philippines
• Camouflaged participation in foreign seminars and sports events
• Workers leave as participants in seminars or sports events but eventually
finding jobs in the host country.
• Traineeship Scheme – Hotel and Restaurant Management (HRM) students
leaving in the guise of a traineeship program for hotels abroad but
eventually landing jobs in the training establishment.
Reference:https://www.philippine-embassy.org.sg/labor/labor-advisories/illegal-recruitment/
The Philippine Overseas Employment
Administration (POEA) has come up with some tips
on how to prevent illegal recruitment:
• Do not apply at recruitment agencies not licensed by POEA.
• Do not deal with licensed agencies without job orders.
• Do not deal with any person who is not an authorized representative
of a licensed agency.
• Do not transact business outside the registered address of the
agency. If recruitment is conducted in the province, check if the
agency has a provincial recruitment authority.
• Do not pay more than the allowed placement fee. It should be
equivalent to one-month salary, exclusive of documentation and
processing costs.
Reference:https://www.philippine-embassy.org.sg/labor/labor-advisories/illegal-recruitment/
The Philippine Overseas Employment
Administration (POEA) has come up with some tips
on how to prevent illegal recruitment:
• Do not pay any placement fee unless you have a valid employment
contract and an official receipt.
• Do not be enticed by ads or brochures requiring you to reply to a Post
Office (P.O.) Box, and to enclose payment for processing of papers.
• Do not deal with training centers and travel agencies, which promise
overseas employment.
• Do not accept a tourist visa.
• Do not deal with fixers.
Reference:https://www.philippine-embassy.org.sg/labor/labor-advisories/illegal-recruitment/
LABOR STANDARDS
A. Conditions of Employment
1. Scope
1.
Coverage
2. Hours of Work
1.
Principles in determining hours worked
2.
Normal hours of work
1.
Compressed work week
2.
Power Interruptions/brownouts
3.
Mean Break
4.
Waiting Time
5.
Overtime
6.
Night Shift Differential
7.
Rest Periods
8.
1.
Weekly Rest day
2.
Emergency Rest day work
Holiday Premium
1.
Coverage; exclusions
2.
Holiday Pay/premium pay of Teachers, piece workers, seasonal, takay, seafarers
9.
13th Month Pay
10.
Service Charge
LABOR STANDARDS
B. Wages
1.
2.
3.
4.
5.
6.
Wages vs. Salary
Payment of wages
Facilities vs. supplements
Non-diminution of Benefits
Prohibitions Regarding wages
Wage Order
1.
Wage distortion
C. Leaves
1.
2.
3.
4.
5.
6.
Service Incentive Leaves
Maternity Leave
Paternity Leave
Solo Parent Leave
Special Leaves for Women workers (Magna Carta for Women)
Victim of VAWC Leave
LABOR STANDARDS
D.Special Group of Employees (after midterms)
1. Women
1.
2.
3.
4.
Discrimination
Stipulation against marriage
Prohibited acts
Anti-Sexual Harassment Act
2. Minors
3. Kasambahay
4. Homeworkers
5. Night Workers
Scope of Conditions of Employment
-
• Who are covered by the labor standards provisions of the Labor
Code?
• Employees in ALL establishments, whether operated for profit or not, are
covered by the law on labor standards
• Exclusions (or not covered) :
1.
2.
3.
4.
5.
6.
7.
Government employees
Managerial employees;
Other officers or members of a managerial staff;
Domestic workers or kasambahay and persons in the personal service of another;
Workers paid by results;
Non-agricultural field personnel; and
Members of the family of the employer
HOURS OF WORK
• Principles:
• What are compensable hours worked?
1. All time during which an employee is required to be on duty
or to be at the employer’s premises or to be at a prescribed
workplace; and
2. All time during which an employee is suffered or permitted to
work.
• “Fair day’s for a fair day’s labor,” remains the basic factor
in determining employees’ wages and back wages
NORMAL HOURS OF WORK
What is the total normal hours work per day?
Eight (8) hours daily
• What is overtime work
Any work in excess of said eight (8) normal hours is
considered overtime work
• May normal working hours be reduced?
Yes, provided that no corresponding reduction is made on
the employee’s wage or salary equivalent to an 8-hour work day. In
instances where the number of hours required by the nature of
work is less than 8 hours, such number of hours should be regarded
as the employee’s FULL working day.
What are flexible working hours?
“Flexible work arrangements” refer to alternative arrangements or schedules
other than the traditional or standard work hours, workdays and workweek.
The effectivity and implementation of any of the flexible work arrangements
should be temporary in nature.
Under R.A. No. 8972, otherwise known as “The Solo Parents’ Welfare Act of
2000,” solo parents are allowed to work on a flexible schedule. The phrase
“flexible work schedule” is defined in the same law as the right granted to a
solo parent employee to vary his/her arrival and departure time without
affecting the core work hours as defined by the employer.
COMPRESSED WORK WEEK
“CWW” refers to a situation where the normal workweek is reduced to less than
six (6) days but the total number of work-hours of 48 hours per week remains. The
normal workday is increased to more than eight (8) hours but not to exceed twelve
(12) hours, without corresponding overtime premium. This concept can be
adjusted accordingly in cases where the normal workweek of the firm is five (5)
days.
• Conditions for its validity:
- CWW scheme is undertaken as a result of an EXPRESS and VOLUNTARY agreement of
MAJORITY of the covered employees of their duly authorized representative
• Compensation?
- Unless there is a more favorable practice existing in the firm, work beyond eight (8) hours
will not be compensable by overtime premium provided the total number of hours worked
per day shall not exceed twelve (12) hours. In any case, any work performed beyond twelve
(12) hours a day or forty-eight (48) hours a week shall be subject to overtime pay
POWER INTERRUPTIONS/BROWNOUTS
Effects:
a. Brown-outs of a short duration but not exceeding twenty (20) minutes
shall be treated as worked or compensable hours whether used
productively by the employees or not.
b. Brown-outs running for more than twenty (20) minutes may not be
treated as hours worked provided any of the following conditions are
present:
i.
ii.
The employees can leave their workplace or go elsewhere whether within or
without the work premises; or
The employees can use the time effectively for their own interest.
c. In each case, the employer may extend the working hours of his
employees outside the regular schedule to compensate for the loss of
productive man-hours without being liable for overtime pay
MEAL BREAK
Every employer is required to give his employees,
regardless of sex, not less than one (1) hour (or 60 minutes)
time-off for regular meals.
• Is it compensable?
Being time-off, it is NOT compensable hours worked. In this case,
the employee is free to do anything he wants, except to work. If
he is required, however, to work while eating, he should be
compensated therefor.
WAITING TIME
• Is it compensable?
Waiting time spent by an employee shall be considered
as working time if waiting is an integral part of his work
or the employee is required or engaged by the employer
to wait.
Time spent waiting for work is compensable if it is spent
“primarily for the benefit of the employer and its
business”
OVERTIME
1. Work rendered after normal eight (8) hours of work is
called “overtime work”
2. Illustrations:
a. For overtime work performed on an ORDINARY DAY, the
overtime pay is plus 25% of the basic hourly rate.
b. For overtime work performed on a REST DAY OR ON A SPECIAL
DAY, the overtime pay is plus 30% of the basic hourly rate which
includes 30% additional compensation as provided in Article 93
(a) of the Labor Code
OVERTIME
c. For overtime work performed on a REST DAY WHICH FALLS ON A
SPECIAL DAY, the overtime pay is plus 30% of the basic hourly
rate which includes 50% additional compensation as provided in
Article 93 (c) of the Labor Code.
d. For overtime work performed on a REGULAR HOLIDAY, the
overtime pay is plus 30% of the basic hourly rate which includes
100% additional compensation as provided in Article 94 (b) of
the Labor Code.
e. For overtime work performed on a REST DAY WHICH FALLS ON A
REGULAR HOLIDAY, the overtime pay is plus 30% of the basic
hourly rate which includes 160% additional compensation.
Premium pay vs Overtime pay
“Premium pay” means the additional compensation required by
law for work performed within eight (8) hours of non-working
days, such as regular holidays, special holidays and rest days.
“Overtime pay” means the additional compensation for work
performed beyond eight (8) hours.
An employee is entitled to both premium pay and overtime pay if
he works on a non-working day and renders overtime work on the
same day.
What is built-in overtime pay?
In case the employment contract stipulates
that the compensation includes built-in overtime
pay and the same is duly approved by the DOLE,
the non-payment by the employer of any
overtime pay for overtime work is justified and
valid.
EMERGENCY OVERTIME WORK
• General Rule: No employee may be compelled to render
overtime work against his will. (The reason is that this will
constitute involuntary servitude and is prohibited by the
Constitution itself)
• Exceptions (when an employee may be compelled to render
overtime work):
1. When the country is at war or when any other national or
local emergency has been declared by the National
Assembly or the Chief Executive;
EMERGENCY OVERTIME WORK
2. When overtime work is necessary to prevent loss of life or property or in
case of imminent danger to public safety due to actual or impending
emergency in the locality caused by serious accident, fire, floods, typhoons,
earthquake, epidemic or other disasters or calamities;
3. When there is urgent work to be performed on machines, installations or
equipment, or in order to avoid serious loss or damage to the employer or
some other causes of similar nature;
4. When the work is necessary to prevent loss or damage to perishable goods;
5. When the completion or continuation of work started before the 8th hour is
necessary to prevent serious obstruction or prejudice to the business or
operations of the employer; and
6. When overtime work is necessary to avail of favorable weather or
environmental conditions where performance or quality of work is
dependent thereon.
EMERGENCY OVERTIME WORK
• May an employee validly refuse to render overtime work during
the aforesaid circumstances?
No. When an employee refuses to render emergency
overtime work under any of the foregoing conditions, he may be
dismissed on the ground of insubordination or willful disobedience
of the lawful order of the employer.
• Can overtime pay be waived?
No. The right to claim overtime pay is not subject to a waiver. Such
right is governed by law and not merely by the agreement of the parties.
NIGHT SHIFT DIFFERENTIAL
• How is it reckoned and computed?
Night shift differential is equivalent to 10% of employee’s
regular wage for each hour of work performed between 10:00
p.m. and 6:00 a.m. of the following day.
• What is the distinction between night shift differential pay and
overtime pay?
When the work of an employee falls at night time, the
receipt of overtime pay shall not preclude the right to receive
night shift differential pay. The reason is the payment of the night
differential pay is for the work done during the night; while the
payment of the overtime pay is for work in excess of the regular
eight (8) working hours.
NIGHT SHIFT DIFFERENTIAL
• How is it computed?
Plus 10% of the hourly rate on that day
- if overtime work on a night shift: 10% of 125% of
basic hourly rate (130% if it falls on a regular holiday,
rest day or special day) or a total of 137.5% of the
hourly rate (or 143% if it falls on a regular holiday, rest
day or special day)
REST PERIODS
• WEEKLY REST PERIOD
It shall be the duty of every employer, whether
operating for profit or not, to provide each of his
employees a rest period of not less than twenty-four
(24) consecutive hours after every six (6) consecutive
normal work days.
REST PERIODS
• Is the employer’s prerogative to determine the rest
period of its employees subject to limitations?
Yes. The employer shall determine and schedule the
weekly rest day of his employees subject to CBA and to
such rules and regulations as the DOLE Secretary may
provide. However, the employer shall respect the
preference of employees as to their weekly rest day when
such preference is based on religious grounds.
EMERGENCY REST DAY WORK
• When can an employer require work on a rest day?
a. In case of actual or impending emergencies caused by serious
accident, fire, flood, typhoon, earthquake, epidemic or other
disaster or calamity, to prevent loss of life and property, or in
case of force majeure or imminent danger to public safety;
b. In case of urgent work to be performed on machineries,
equipment, or installations, to avoid serious loss which the
employer would otherwise suffer;
c. In the event of abnormal pressure of work due to special
circumstances, where the employer cannot ordinarily be
expected to resort to other measures;
EMERGENCY REST DAY WORK
• When can an employer require work on a rest day?
d. To prevent serious loss of perishable goods;
e. Where the nature of the work is such that the employees have to
work continuously for seven (7) days in a week or more, as in the
case of the crew members of a vessel to complete a voyage and
in other similar cases; and
f. When the work is necessary to avail of favorable weather or
environmental conditions where performance or quality of work
is dependent thereon.
HOLIDAY PAY/PREMIUM PAY
• Generally, all employees are entitled to and covered
by the law on holiday pay.
• Who are EXCLUDED from its coverage?
a. Those of the government and any of the political
subdivisions,
including
government-owned
and
controlled corporations;
b. Those of retail and service establishments regularly
employing less than ten (10) workers;
c. Domestic workers or Kasambahays;
HOLIDAY PAY/PREMIUM PAY
• Who are EXCLUDED from its coverage?
d. Persons in the personal service of another;
e. Managerial employees as defined by the Labor Code;
f. Field personnel and other employees whose time and performance
is unsupervised by the employer;
g. Those who are engaged on task or contract basis or purely
commission basis;
h. Those wo are paid a fixed amount for performing work irrespective
of the time consumed in the performance thereof;
i. Other officers and members of the managerial staff;
j. Members of the family of the employer who are dependent on him
for support.
What are REGULAR and SPECIAL HOLIDAYS
A. Regular Holidays
•
•
•
•
•
•
•
•
•
•
New Year’s Day –
1
Araw ng Kagitingan – 9
Maundy Thursday –
Good Friday –
Labor Day –
1
Independence Day – 12
National Heroes Day –
Bonifacio Day –
Christmas Day –
Rizal Day –
30
January
April
May
June
Last Monday of August
30
November
25
December
December
What are REGULAR and SPECIAL HOLIDAYS
C. Special (Non-Working) Days
•
•
•
•
Chinese New Year –
Black Saturday –
Ninoy Aquino Day –
All Saints Day –
21
1
August
November
D. Special Holiday (for all schools)
• EDSA Revolution Anniversary –
25
February
E. REGULAR HOLIDAYS dependent on National Commission on
Muslim Filipinos:
• Eid’l Fitr
• Eidul Adha
What are REGULAR and SPECIAL HOLIDAYS
• Total regular holidays:
twelve (12) days per year
• Distinction between regular and special (non-working)
holidays?
• Regular holidays are considered GUARANTEED WITH PAY since
employees should be paid their wages during regular holidays
regardless of whether they work or not on those days.
• As far as special (non-working days are concerned, the principle of
“NO WORK, NO PAY” applies, which means that if workers do not
work on special (non-working) days, they do not receive any wages
for those days, unlike in the case of regular holidays as above
discussed.
How is premium pay for holidays computed?
REGULAR HOLIDAYS
• If employee did not work – 100% salary for that
day
• If employee worked – 200% salary for that day
• If the employee worked overtime – 200% +
(200% x 130% x number of overtime hours)
Are these employees entitled to holiday pay?
• Private school teachers during semestral vacations?
• No, as far as regular holidays during semestral vacations; Yes, as far as regular Holidays during
Christmas vacations;
• Hourly-paid teachers?
• No
• Piece-workers, takay, and others paid by results?
• Yes
• Seasonal workers?
• Yes
• Seafarers?
• Yes
• Principal test to determine entitlement to holiday pay is whether the employees’ time
and performance of the work are “supervised” or “unsupervised” by their employer. If
supervised, the employee is entitled to holiday pay. Otherwise, not entitled.
th
13
MONTH PAY
• Who are covered?
Only rank-and-file employees, regardless of their designation or
employment status and irrespective of the method by which their
wages are paid.
Managerial employees are not entitled to 13th month pay.
• Minimum period of service required in a calendar year to be entitled
to 13th month pay?
Minimum service requirement – at least one (1) month during a calendar
year.
th
13
MONTH PAY
• When paid?
Not later than December 24 of every year
• Who are excluded?
• Government and any of the political subdivisions, including governmentowned and controlled corporations, except those corporations operating
essentially as private subsidiaries of the government.
• Employers already paying their employees 13th month pay or more in a
calendar year or its equivalent at the time of the issuance of the Revised
Guidelines
• Employers of those who are paid on purely commission, boundary, or task
basis, and those who are paid a fixed amount for performing a specific work
th
13
MONTH PAY
• Are domestic workers or Kasambahays covered?
YES.
• Are extras, casuals and seasonal employees entitled? YES.
• Is it part of wage? NO. It is in the nature of additional
income
• Minimum amount? Not less than one-twelfth (1/12) of the
total basic salary earned by an employee within a calendar
year.
SERVICE CHARGE
• This apply only to establishments such as hotels, restaurants, lodging
houses, night clubs, cocktail lounges, massage clinics, bars, casinos
and gambling houses, and similar enterprises, including those entities
operating primarily as private subsidiaries of the government.
• How distributed?
• 85% - distributed equally among the covered employees; and
• 15% - to management to answer for losses and breakages
• Frequency:
• Once every two (2) weeks or twice a month at intervals not exceeding sixteen
(16) days
TIPS vs SERVICE CHARGE
Tips are given by customers voluntarily to waiters and
other people who serve them out of recognition of
satisfactory or excellent service. There is no compulsion
to give tips under the law. The same may not be said of
service charges which are considered integral part of
the cost of the food, goods or services ordered by the
customers.
Service charges are not in the nature of profit share
and, therefore, cannot be deducted from wage.
WAGES
•Wage vs. salary
Wage – is used to characterize the
compensation paid for manual skilled or
unskilled labor
Salary – is used to describe compensation for
higher or superior level of employment
PAYMENT OF WAGES
• Attributes of wage:
1. It is the remuneration of earning, however designated, for work done or to
be done or for services rendered or to be rendered;
2. It is capable of being expressed in terms of money, whether fixed or
ascertained on a time, task, piece or commission basis, or other method of
calculating the same;
3. It is payable by an employer to an employee under a written or unwritten
contract of employment for work done or to be done or for services
rendered or to be rendered; and
4. It includes the fair and reasonable value, as determined by the DOLE
Secretary, of board, lodging, or other facilities customarily furnished by the
employer or to any person affiliated with the employer
What is basic wage?
Means all remuneration or earning paid by an employer to a
worker for services rendered on normal working days and
hours but does not include cost-of-living allowances, profitsharing payments, premium payments, 13th month pay or
other monetary benefits which are not considered part of or
integrated into the regular salary of the workers.
Excluded: payments for sick, vacation and maternity leaves,
night differentials, regular holiday pay and premiums for work
done on rest days and special holidays.
What is minimum wage?
The minimum wage prescribed by law shall
be the basic cash wages without deduction
therefrom of whatever benefits, supplements or
allowances which the employees enjoy free of
charge aside from the basic pay.
What is statutory minimum wage?
Refers simply to the lowest basic wage
fixed by law that an employer can pay his
workers.
What is regional minimum wage rate?
Refers simply to the lowest basic wage
rates that an employer can pay his workers,
as fixed by the Regional Tripartite Wages
and Productivity Boards (RTWPBs), and
which shall not be lower than the applicable
statutory minimum wage rates.
What are included/excluded in the term
“wage rate”?
The term “wage rate” includes cost-of-living
allowances as fixed by the RTWPB, but EXCLUDES other
wage-related benefits such as overtime pay, bonuses,
night shift differential pay, holiday pay, premium pay,
13th month pay, leave benefits, among others.
FACILITIES VS. SUPPLEMENTS
Facilities – includes articles or services for the benefit of the employee
or his family but does not include tools of the trade or articles or
services primarily for the benefit of the employer or necessary to the
conduct of the employer’s business. They are items of expense
necessary for the laborer’s and his family’s existence and subsistence
which form part of the wage and when furnished by the employer, are
deductible therefrom, since if they are not so furnished, the laborer
would spend and pay for them just the same.
Supplements – means extra remuneration or special privileges or
benefits given to or received by the laborers over and above their
ordinary earnings or wages.
FACILITIES VS. SUPPLEMENTS
The benefit or privilege given to the employee which constitutes
an extra remuneration over and above his basic or ordinary earning or
wage is supplement; and when said benefit or privilege is made part of
the laborer’s basic wage, it is facility. The criterion is not so much with
the kind of the benefit or item (food, lodging, bonus or sick leave) given
but its purpose. Thus, free meals supplied by the ship operator to crew
members, out of necessity, cannot be considered as facilities but
supplements which could not be reduced having been given not as part
of wages but as a necessary matter in the maintenance of the health
and efficiency of the crew during the voyage.
Facilities are deductible from wage but not supplements.
PROHIBITIONS REGARDING WAGES
1.
Non-interference by employer in the disposal by employees of their wages
- No employer is allowed too limit or otherwise interfere with the freedom of any
employee to dispose of his wages and no employer shall in any manner oblige any of his employees
to patronize any store or avail of the services by any person.
2. Wages not subject to execution or attachment
- Courts of law cannot interfere with wages
3. Prohibitions on deductions from wages (general rule)
4. Prohibition against deposit requirement
5. Prohibition on withholding of wages
6. Kickbacks
7. Prohibition against deduction to ensure employment
8. Retaliatory actions by employer
9. False statement, report or record
WAGE ORDER
• Refers to the order promulgated by the Regional
Tripartite Wages and Productivity Board (RTWPB)
pursuant to its wage fixing authority
WAGE DISTORTION
Contemplates a situation where an increase in prescribed wage
rates results in either of the following:
1. Elimination of the quantitative differences in the rates of wages or
salaries; or
2. Severe contraction of intentional quantitative differences in wage or
salary rates between and among employee groups in an
establishment as to effectively obliterate the distinctions embodied
in such wage structure based on the following criteria:
a. Skills;
b. Length of service; or
c. Other logical bases of differentiation.
LEAVES
• Service Incentive Leave
Every covered employee who has rendered at least one (1) year of
service is entitled to a yearly service incentive leave of five (5) days with pay.
The term “at least one year of service” should mean service within
twelve (12) months, whether continuous or broken, reckoned from the date
the employee started working, including authorized absences and paid
regular holidays, unless the number of working days in the establishment as
a matter of practice or policy, or that provided in the employment contract,
is less than twelve (12) months, in which case, said period should be
considered as one (1) year for the purpose of determining entitlement to the
service incentive leave benefit.
LEAVES
• Who are excluded from its coverage?
a. Those of the government and any of its political
subdivisions,
including
government-owned
and
controlled corporations;
b. Domestic workers or kasambahays;
c. Persons in the personal service of another;
d. Managerial employees as defined in the Labor Code;
e. Field personnel and other employees whose
performance is unsupervised by the employer;
LEAVES
• Who are excluded from its coverage?
f.
g.
h.
i.
j.
k.
Those who are engaged on task or contract basis, purely commission
basis, or those who are paid in a fixed amount for performing work
irrespective of the time consumed in the performance thereof;
Those who are already enjoying the benefit provided in the law;
Those enjoying vacation leave with pay of at least five (5) days;
Those employed in establishments regularly employing less than ten
(10) employees;
Other officers and members of the managerial staff; and
Members of the family of the employer who are dependent on him
for support.
Are unavailed service incentive leaves
commutable to cash?
Yes. The service incentive leave is
commutable to its money equivalent if not
used or exhausted at the end of the year.
MATERNITY LEAVE
• The period of time which may be availed of by a
woman employee, married or unmarried, to undergo
and recuperate from childbirth, miscarriage or
complete abortion during which she is permitted to
retain her rights and benefits flowing from her
employment.
MATERNITY LEAVE
RA 11210:
• SECTION 5. Maternity Leave for Female Workers in the
Private Sector. — Any pregnant female worker in the
private sector shall be granted a maternity leave of
one hundred five (105) days with full pay, regardless
of whether she gave birth via caesarian section or
natural delivery, while maternity leave of sixty (60)
days with full pay shall be granted for miscarriage or
emergency termination of pregnancy.
MATERNITY LEAVE
Amount?
100% of her average daily credit for 105 days
Number of delivery or miscarriage covered?
only for the first four (4) deliveries or miscarriages
PATERNITY LEAVE
Covers a married male employee allowing him not to report for
work for seven (7) calendar days but continues to earn the
compensation therefor, on the condition that his spouse has delivered
a child or suffered miscarriage for purposes of enabling him to
effectively lend support to his wife in her period of recovery and/or in
the nursing of the newly-born child.
“Delivery” includes childbirth or any miscarriage.
“Spouse” refers to the lawful wife.
“Cohabiting” refers to the obligation of the husband and wife to
live together.
PATERNITY LEAVE
What is covered total number of deliveries?
Every married employee in the private and public sectors is
entitled to a paternity leave of seven (7) calendar days with full
pay for the first four (4) deliveries of the legitimate spouse with
whim he is cohabiting.
Paternity leave benefits are granted to the qualified
employee after the delivery by his wife, without prejudice to an
employer allowing an employee to avail of the benefit before or
during the delivery, provided that the total number of days should
not exceed seven (7) calendar days for each delivery.
PATERNITY LEAVE
Is an unavalied paternity leave benefit convertible
to cash?
No. In the event that the paternity leave
benefit is not availed of, said leave shall not be
convertible to cash.
PARENTAL LEAVE FOR SOLO PARENTS
• What is parental leave?
Leave benefit granted to a male or female solo parent
to enable him/her to perform parental duties and
responsibilities where physical presence is required.
• How many days may be availed of as parental leave?
Not more than seven (7) working days every year to a
solo parent who has rendered service of at least one (1)
year.
PARENTAL LEAVE FOR SOLO PARENTS
• This leave shall be non-cumulative.
• It bears noting that this is an additional leave benefit
which is separate and distinct from any other leave
benefits provided under existing laws and
agreements.
PARENTAL LEAVE FOR SOLO PARENTS
• Who is a solo parent?
1. A woman who gives birth as a result of rape and other crimes
against chastity even without a final conviction of the offender:
Provided, That the mother keeps and raises the child;
2. Parent left solo or alone with the responsibility of parenthood due
to death of spouse;
3. Parent left solo or alone with the responsibility of parenthood
while spouse is detained or is serving sentence for a criminal
conviction for at least one (1) year;
4. Parent left solo or alone with the responsibility of parenthood due
to physical and/or mental incapacity of spouse as certified by a
public medical practitioner;
PARENTAL LEAVE FOR SOLO PARENTS
• Who is a solo parent?
5. Parent left solo or alone with the responsibility of parenthood
due to legal separation or de facto separation from spouse for
at least one (1) year, as long as he/she is entrusted with the
custody of the children;
6. Parent left solo or alone with the responsibility of parenthood
due to declaration of nullity or annulment of marriage as
decreed by a court or by a church as long as he/she is
entrusted with the custody of the children;
7. Parent left solo or alone with the responsibility of parenthood
due to abandonment of spouse for at least one (1) year;
PARENTAL LEAVE FOR SOLO PARENTS
• Who is a solo parent?
8. Unmarried mother/father who has preferred to keep and rear
her/his child/children instead of having others care for them
or give them up to a welfare institution;
9. Any other person who solely provides parental care and
support to a child or children;
10. Any family member who assumes the responsibility of head
of family as a result of the death, abandonment,
disappearance or prolonged absence of the parents or solo
parent.
PARENTAL LEAVE FOR SOLO PARENTS
• What is the effect of change of status of the solo parent?
shall terminate his/her eligibility for these benefits
• Who are considered children under this law?
those living with and dependent upon the solo parent for support
who are unmarried, unemployed and not more than eighteen (18) years
of age, or even over eighteen (18) years but are incapable of self-support
because of mental and/or physical defect/disability
• Is an unavailed parental leave convertible to cash?
No. In the event that the parental leave is not availed of, said leave
shall not be convertible to cash unless specifically agreed upon
previously.
SPECIAL LEAVES FOR WOMEN WORKERS
• R.A. No. 9710, otherwise known as “The Magna Carta of Women”
Any female employee in the public an private sector regardless of age and civil status
shall be entitled to special leave of two (2) months with full pay based on her gross
monthly compensation subject to existing laws, rules and regulations due to surgery
caused by gynecological disorders under the following terms and conditions:
1. She has rendered at least six (6) months continuous aggregate employment
service for the last twelve (12) months prior to surgery;
2. In the even that an extended leave is necessary, the female employee may use
or her earned leave credits; and
3. This special leave shall be non-cumulative and non-convertible to cash
Maternity benefit and gynecological surgery leave are not mutually exclusive and thus
may be availed at the same time.
LEAVES FOR VICTIMS OF VIOLENCE AGAINST
WOMEN AND CHILDREN (R.A. No. 9262)
• Ten (10) days of paid leave of absence, in addition to
other paid leaves under the law.
• Extendible when the necessity arises as specified in
the protection order.
• Its purpose is to enable the woman employee to
attend to the medical and legal concerns relative to
the said law.
• Not convertible to cash