LABOR AND LABOR LAW
Labor: It is the exertion by human beings of
physical or mental efforts, or both towards the
production of goods and services
Labor Law: The Law governing the rights and
duties of the employer and employees with
respect
to:
>The terms and conditions of employment and;
>Labor disputes arising from collective bargaining
respecting such terms and conditions.
Sources of Labor Law:
>Labor code and other related special legislation
>Contract
>CBA – Collective Bargaining agreement
Sec. 9, Art. II – The state shall promote a just and
dynamic social order that will ensure the
prosperity and independence of the nation and
free the people from poverty through policies that
provide adequate social services, promote full
employment, a rising standard of living, and an
improved quality of life for all.
Sec. 10, Art II – The state shall promote social
justice in all phases of national development.
Sec. 11, Art. II – The state values the dignity of
every human person and guarantees full respect
for human rights.
Sec. 14, Art. II – The state recognizes the role of
women in nation-building, and shall ensure the
fundamental equality before the law of women
and men.
Sec. 13, Art. II – The state recognizes the vital role
of the youth in nation-building and shall promote
and protect their physical, moral, spiritual,
intellectual, and social well-being. It shall inculcate
in the youth patriotism and nationalism, and
encourage their involvement in public and civic
affairs.
>Past practice
>Company policies
>Supreme Court Decisions
The 1987 Constitution
Sec. 3 Art. XIII – 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 works 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.
Sec. 18, Art. II – The state affirms labor as a
primary economic force. It shall protect the rights
of workers and promotes their welfare.
Sec. 20, Art II – The state recognizes
theindispensable role of the private sector,
encourages private enterprise, and provides
incentives to needed investments.
Sec. 1, Art. III – No person shall be deprived of life,
liberty, or property without due process of law, nor
shall any person be denied the equal protection of
the laws.
Sec. 4, Art. III – No law shall be passed abridging
the freedom of speech, of the expression, or of the
press, or the right of the people peaceably to
assemble and petition the government for redress
of grievances.
Sec. 8, Art XIII – The right of the people,including
those employed in the public and privatesectors,
to form unions, associations, or societiesfor
purposes not contrary to law shall not be abridged.
Sec. 2, Art. XIII – The state shall protect working
women by providing safe and healthful working
conditions, taking into account their maternal
functions, and such facilities and opportunities
that will enhance their welfare and enable them to
realize their full potential in the service of the
nation.
ARE ALL LABOR DISPUTES IN FAVOR OF
LABOR?
NO, THE LAW ALSO RECOGNIZES THAT
MANAGEMENT ARE ALSO ENTITLED TO RESPECT
AND ENFORCEMENT IN THE INTEREST OF FAIR
PLAY.
Security of Tenure
Management Rights
“One’s employment, profession, trade or calling is
a ‘property right,’ of which a worker may be
deprived only upon compliance of due process
requirements: it is the policy of the state to assure
the right of workers to “security of tenure”.
While the Constitution is committed to the policy
of social justice and the protection of the working
class, it should not be supposed that every labor
dispute will be automatically in decided in favor of
labor. Management also has its own rights which,
as such, are entitled to respect and enforcement in
the interest of simple and fair play. Out of its
concern for those with fewer privileges in life, the
Supreme Court has inclined more often than not
toward the worker and upheld his cause in his
conflicts with the employer. Such favouritism,
however, has not blinded the Court to the rule that
justice is in every case for the deserving, to be
dispensed in the light of the established facts and
the applicable law and doctrine.
Civil Code
Art. 1700 – The relations between capital and
labor are not merely contractual. They are so
impressed with public interest that labor contract
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.
Art. 1701 – Neither capital nor labor shall act
oppressively against the other, or impair the
interest or convenience of the public.
Art. 1702 – In case of doubt, all labor legislation
and all labor contracts shall be construed in favour
of the safety and decent living for the laborer.
Rights of the management:
>Right to prescribe rules
>Right to select employees
>Right to transfer or discharge employees
Labor Code
Why in favor of labor?
In the matter of employment bargaining, there is
no doubt that the employer stands on higher
footing than the employee. First of all, there is
greater supply than demand for labor. Secondly,
the need for employment by labor comes from
vital, and even desperate, necessity. Consequently,
the law must protect labor, at least, to the extent
of raising him to equal footing in bargaining
relations with capital and to shield him from
abuses brought about by the necessity for survival.
WHAT ARE THE REASONS FOR GREATER
PROTECTION TO LABOR?
-Greater supply than demand for Labor;
-Need for employment by labor Comes from vital
and desperate Necessity.
>The writing of Labor Code began in 1968 under
the leadership of then Minister of Labor, Mr. Blas F.
Ople, who deserves being regarded as “Father of
the Labor Code”.
>On May 1, 1974, it was signed into Law.
>Our laws on labor, foremost of which is the Labor
Code, are pieces of social legislation. They have
been adopted pursuant to the constitutional
recognition of labor as a primary social economic
force and to the constitutional mandates for the
state to protect the rights of workers and promotes
their welfare and for congress to give highest
priority to the enactment of measure that protect
and enhance the right of all the people to human
dignity, and state to assure the right of workers to
“security of tenure.”
APPLICABILITY
General Rule: All rights and benefits granted to
workers under the Labor Code shall apply to all
workers, whether agricultural or non-agricultural.
Exceptions:
>Government Employees
>Foreign Governments
>International Agencies
>Corporate Officers/Intra-corporate disputes which
fall under the jurisdiction of the regular courts
DEFINITIONS
Employer: Any person acting in the interest of an
employer, directly or indirectly. The term does not
include a labor organization or any of its officers
and agents, except when acting as an employer.
(Labor Code)
Test on whether a controversy falls within the
definition of a labor dispute:
>As to nature: It depends on whether the dispute
arises from employer-employee relationship,
although disputants need not be proximately the
employer or employee of another.
>As to subject matter: The test depends on
whether it concerns terms or conditions of
employment or association or representation of
persons in negotiating, fixing, maintaining or
changing terms or conditions of employment.
Parties to a dispute:
>Primary parties: Employer, employee and the
union
>Secondary parties: Voluntary arbitrator, agencies
of DOLE, NLRC, Sectary of Labor and the Office of
the President.
LABOR LAW AND SOCIAL LEGISLATION
: An employer is defined as any person or entity
that employs the services of others; one for whom
work and who pays their wages of salaries; any
person acting in the interest of an employer.
Employee: Any person in the employ of the
employer
Note: The term shall not be limited to the
employees of a particular employer unless the
labor code explicitly states.
Any employee whether employed for a definite
period or not, shall, beginning on the first day of
service, be considered an employee for purposes
of membership in any labor union.
Labor Dispute
Includes any controversy or matter concerning:
RECRUITMENT AND PLACEMENT
Recruitment and Placement: any act of (CETCHUP)
canvassing, enlisting, transporting, contracting,
hiring, utilizing or procuring workers and includes
includes (CRAP) contract services, referrals,
advertising for employment, promising for
employment locally or abroad, whether for profit
or not:
Persons Deemed Engaged in Recruitment and
Placement:
>Any person or entity which, in any manner, offers
or promises for a fee, employment to two (2) or
more persons shall be deemed engaged in
recruitment and placement. (Labor Code, Art.
13[b])
Private Recruitment
>Terms and conditions of employment, or
>The association or representation of persons in
negotiating, fixing, maintaining, changing or
arranging the terms and conditions of employment
>Regardless of whether the disputants stand in the
proximate relation of employer and employee.
(Labor Code)
General Rule: No persons or entity other than
public employment offices, shall engage in the
recruitment and placement of workers (Labor
Code, Art. 16)
Exceptions:
>Public employment offices
>Private employment offices
>Private recruitment entities
>Shipping or manning agents or representatives
>POE
>Construction contractors if authorized by the
DOLE and POEA.
THE POEA:
POEA connects to the world and in partnership
with all stakeholders, facilitates the generation and
preservation of decent jobs for Filipino migrant
workers, promotes their protection and advocates
their smooth reintegration into Philippine society.
Principal Functions of the POEA:
>Protection of the right of Filipino workers to fair
and equitable employment practices
>Regulation of private sector participation in the
recruitment and overseas placement of workers by
setting up a licensing and registration system
>Deployment of Filipino workers through Govt. to
govt. hiring
>Formulation, implementation, and monitoring of
overseas employment of Filipino workers taking
into consideration their welfare and domestic
manpower requirements
>Shall inform migrant workers not only of their
rights as workers but also of their rights as human
beings, instruct and guide the workers how to
assert their rights and provide the available
mechanism to redress violation of the rights
>Implementation, in partnership with other lawenforcement agencies, of an intensified program
against illegal recruitment activities.
Deployment of OFWs:
The state shall allow the deployment of OFWs
>Only in countries where the rights of Filipino
migrant workers are protected
>To vessels navigating the foreign seas or to
installations located offshore or on high seas
whose owners/employers are compliant with
international laws and standards that protect the
rights of migrant workers.
>To companies and contractors with international
operations: Provided, that they are compliant with
standards, conditions and requirements, as
embodied in the employment contracts prescribed
by the POEA and in accordance with
internationally-accepted standards. (Sec. 3, RA
10022)
Private Sector Participation in the Recruitment
and Placement of Workers:
>Private employment sector shall participate in the
recruitment and placement of workers, locally and
overseas, under such guidelines, rules and
regulations as may be issued by the SOLE. (Labor
Code, Art. 25)
Validity of License to Recruit:
Local Employment – license shall be valid for a
period of three (3) years from the date of issuance
unless sooner revoked or cancelled
Overseas Employment – regular license is valid up
to the full term of four (4) years from the date of
issuance of the provisional license.
>Provisional license is issued by the POEA which is
valid for two (2) years. POEA may upgrade the
provisional license during its validity to a regular
license after the recruiter has deployed at least
one hundred workers to its new principal(s). A
provisional license does not authorize recruitment
for domestic employment.
Fees to be paid by workers:
General Rule: Any person applying with a private
fee-charging employment agency for employment
assistance shall not be charged any fee.
Exceptions: when:
>Worker obtained work through recruiter’s efforts;
and
>Has actually commenced employment (Labor
Code, Art. 32)
>Placement fee in an amount equivalent to one
month basic salary of the worker
>Documentation costs; and
>Membership with Philhealth, Pag-IBIG and SSS
Suspension and/or Cancellation of
license or authority
Who is a 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 SOLE; or
>Whose license or authority has been suspended,
revoked or cancelled by the POEA or the SOLE.
Article 34. Prohibited practices.
It shall be unlawful for any individual, entity,
licensee, or holder of authority
>To charge or accept, directly or indirectly, any
amount greater than that specified in the schedule
of allowable fees prescribed by the Secretary of
Labor, or to make a worker pay any amount greater
than that actually received by him as a loan or
advance;
>To furnish or publish any false notice or
information or document in relation to recruitment
or employment;
>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 this Code.
>To induce or attempt to induce a worker already
employed to quit his employment in order to offer
him to another unless the transfer is designed to
liberate the worker from oppressive terms and
conditions of employment;
>To influence or to attempt to influence any person
or entity not to employ any worker who has not
applied for employment through his agency;
>To engage in the recruitment or placement of
workers in jobs harmful to public health or
morality or to the dignity of the Republic of the
Philippines;
>To obstruct or attempt to obstruct inspection by
the Secretary of Labor or by his duly authorized
representatives;
>To fail to file reports on the status of
employment, placement vacancies, remittance of
foreign exchange earnings, separation from jobs,
departures and such other matters or information
as may be required by the Secretary of Labor.
>To substitute or alter employment contracts
approved and verified by the Department of Labor
from the time of actual signing thereof by the
parties up to and including the periods of
expiration of the same without the approval of the
Secretary of Labor;
>To become an officer or member of the Board of
any corporation engaged in travel agency or to be
engaged directly or indirectly in the management
of a travel agency; and
>To withhold or deny travel documents from
applicant workers before departure for monetary
or financial considerations other than those
authorized under this Code and its implementing
rules and regulations.
Illegal Recruitment:
Under Article 38(a) of the Labor Code, illegal
recruitment means any recruitment activities,
including the prohibited practices enumerated
under Article 34 of this Code, to be undertaken by
a non-licensees or non-holders of authority.
Elements:
1.
2.
The offender is a non-licensee or nonholder of authority engaged in the
recruitment and placement of workers;
and
The offender undertakes:
-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
-Any prohibited practices enumerated
Two Kinds of Illegal Recruiter:
Employment of Aliens: Requisites for
Employment of Non-Resident Aliens
1. Non-licensee or Non-holder of Authority who
>working permit from DOLE
performs:
-Any of the acts defined under Article 13(b); or
-Any of the prohibited practices
2. Licensed or Holder of Authority who
>certification that there is no available Filipino
willing and competent to do the job for the
employer
>alien must train at least two Filipino understudies
for such undertaking
performs:
-Any of the prohibited practices
Types of illegal recruitment:
Simple – is committed where a licensee/non
licensee or holder/non-holder of authority
undertakes either any recruitment activities
defined under Article 13(b), or any prohibited
practices
>FOR ENTERPRISES REGISTERED IN PREFERRED
AREAS OF INVESTMENT – employment permit
issued upon recommendation of government
agency charged with the supervision of said
registered enterprise
Duration of Permit
>Valid for 1 year from date of issuance, unless
sooner revoked by the Secretary of Labor
Syndicated – Committed by a syndicate if carried
out by a group of three(3) or more persons in
conspiracy or confederation with one another
>Renewable upon showing of good cause
>Non-transferable
Large Scale – Committed against three (3) or more
persons individually or as a group
Labor Standards
Proof of Illegal Recruitment:
There is illegal recruitment when one gives the
impression of having the ability to send a worker
abroad. It is important that there must at least be a
promise or offer of an employment from the
person posing as a recruiter, whether locally or
abroad.
Part I. Mandatory Benefits
1.
8-Hour Work (Art. 83) Hours Worked
2.
Meal Period (Art. 85)
3.
Night Shift Differential (Art. 86)
4.
Overtime Pay (Art. 87)
Money Claims of OFWs
5.
Weekly Rest Period (Art. 91)
A worker dismissed from overseas employment
without just, valid or authorized cause as defined
by law or contract, is entitled to:
6.
Premium Pay (Art. 93)
7.
Holiday Pay (Art. 94)
>full reimbursement of the placement fee with
interest at 12% per annum PLUS
8.
Service Incentive Leaves (Art. 95)
>his salary for unexpired portion of his
employment contract OR salary for 3 months for
every year of the unexpired term, WHICHEVER IS
LESSER
Article 83. Normal hours of work. The normal
hours of work of any employee shall not exceed
eight (8) hours a day.
Purpose of the 8-Hour Labor Law
The Eight-hour Labor Law was enacted
not only to safeguard the health and welfare of the
laborer or employee, but in a way to minimize
unemployment by forcing employers, in cases
where more than 8-hour operation is necessary to
utilize different shifts of laborers or employees
working only for 8 hours each.
Rationale of 8 hours of work:
1.
To safeguard the health and welfare of the
laborer; and
2.
To minimize unemployment by utilizing
different shifts (Manila terminal Co., Inc
vs. CIR)
Compressed workweek
It is a scheme where the normal
workweek is reduced to less than 6 days but the
total number of work-hours of 48 hours per week
shall remain.
The normal workday is increased to more
than 8 hours but not to exceed 12 hours, without
corresponding overtime premium. The concept can
be adjusted accordingly depending on the normal
workweek of the company
Requisites:
Part-Time Work
Considering the purpose of the law, as
mentioned above, it is not prohibited to have
“normal hours of work” of less than eight hours a
day. What the law regulates is work hours
exceeding eight. It prescribes a maximum but not
minimum. Art. 83 does not say that the normal
hours of work is or should be eight hours but that
it shall not exceed eight. Therefore, part-time work,
or a day’s work of not less than eight hours, is not
prohibited.
It is not prohibited to have normal hours
of work of less than eight hours a day. What the
law regulates is work hours exceeding eight - it
prescribes the maximum but not the minimum.
Art. 83 do not say that the normal hours
of work is or should be eight hours but that it shall
not exceed eight.
1.
The scheme is expressly and voluntarily
supported by majority of the employees
2.
In firms using substances, or operating in
conditions that are hazardous to health, a
certification is needed from an accredited
safety organization or the firm’s safety
committee that work beyond8 hours is
within the limit or levels of exposure set
by DOLE’s occupational safety and health
standards.
3.
The DOLE Regional office is duly notified.
Valid Compressed work week:
The validity of the reduction of working
hours can be upheld when the arrangement is:
1.
Temporary
2.
It is a more humane solution instead of a
retrenchment of personnel;
3.
There is notice and consultations with the
workers and supervisors;
4.
A consensus is reached on how to deal
with deteriorating economic conditions;
and
5.
It is sufficiently proven that the company
was suffering from losses.
Broken Hours
Minimum normal 8 working hours fixed
by law need not be continuous to constitute the
legal working day. It may mean broken hours of
say, 4 hours in the morning and 4 hours in the
evening or variation thereof provided the total of 8
hours is accomplished within the work day.
Conditions where a “Compressed workweek”
schedule may be legally authorized as an
exception to the 8-hour a day requirement under
the labor code:
1.
The employee voluntarily agrees to it
2.
There is no diminution in their weekly or
monthly take home pay or fringe benefits
3.
4.
although not actually doing any work, is still
deemed working time.
When Hours worked are Compensable:
The benefits are more than or at least
commensurate or equal to what is due to
the employees without the compressed
work week
Overtime pay will be due and dependable
when they are required to work on those
days which should have ceased to be
working days because of the compressed
work week schedule.
5.
No strenuous physical exertion or that
they are given adequate rest periods.
6.
It must be for a temporary duration as
determined by the DOLE.
1.
Employee is required to be on duty or to
be at a prescribed workplace;
2.
Employee is suffered or permitted to
work;
3.
Rest periods of short duration during
working hours which shall not be more
than 20 minutes; and
4.
Meal periods of less than 20 minutes
Note: Travel time, when beneficial to the
employer is compensable (Rada vs. NLRC)
Principles in determining hours worked:
Types of Flexible working arrangements
1.
Reduction of workdays: Where the normal
work days per week are reduced but
should not last for more than six (6)
months.
2.
Rotation of workers: where the
employees are rotated or alternately
provided work within the workweek
3.
Forced leave: where the employees are
required to go on leave for several days or
weeks, utilizing their leave credits if there
are any.
4.
5.
Broken-time schedule: where the work
schedule is not continuous but the
number of work hours within the day or
week is not reduced.
Flexi-holiday schedule: where the
employees agree to avail themselves of
the holidays on some other days,
provided that there is no diminution of
existing benefits as a result of such
arrangement.
Working Time:
Working time is one during which an employee is
actually working. It may include an instance when
an employee is not actually working but he is
required to be present in the employer’s premises.
Thus, the fact that he is required to be present
1.
All hours which the employee is required
to give to his employer regardless of
whether or not such hours are spent in
productive labor or involve physical or
mental exertion.
2.
Rest period is excluded from hours
worked, even if employee does not leave
his workplace, it being enough that:
a.
He stops working
b.
May rest completely
c.
May leave his workplace, to go elsewhere,
whether within or outside the premises of the
workplace.
3. All time spent for work is considered hours
worked if:
a. The work performed was necessary
b. If it benefited the employer
c. Or the employee could not abandon
his work at the end of his normal
working hours because he had no
replacement
d.
Provided, the work was with the
knowledge of his employer or immediate
supervisor
2. Travel that is all in a day’s work - time spent in travel as
part of the employees principal activity.
3.
The time during which an employee is
inactive by reason of interruptions in his
work beyond his control shall be considered
working time:
Example: Travel from job site to hob site during the
work day, must be counted as working hours.
Travel away from home
General Rule:
a.
b.
If the imminence of the
resumption of the work required
the employees presence at the
place of work; or
If the interval is too brief to be
utilized effectively and gainfully
in the employees own interest.
a. Travel that requires an overnight stay on the part of the
employee when it cuts across the employee’s workday is
clearly working time.
b. The time is not only hours worked on regular workdays but
also during corresponding working hours on non-working days.
Outside of these regular working hours, travel away from home
is not considered working time.
Rules on Hours Worked:
A.
Waiting Time:
Exception: During meal period or when employee is permitted
to sleep in adequate facilities furnished by the employer.
It shall be considered as working time if:
1.
Waiting is an integral part of his work
2.
The employee is required or engaged by
the employer to wait; or
3.
When an employee is required to remain
on call in the employer’s premises or so
close thereto that he cannot use the time
effectively and gainfully for his own
purpose.
Travel Time:
1.
Travel from home to work
General Rule: Normal travel from home to work is
not working time.
Sleeping time
Whether sleeping time allowed an employee will be
considered as per his working time will depend upon the
express or implied agreement of the parties.
In the absence of an agreement, it will depend upon
the nature of the service and its relation to the working time.
Compensable: If sleeping time is subject to serious interruption
or takes place under conditions substantially less desirable than
would be likely to exist at the employer’s home.
Not Compensable: If there is an opportunity for comparatively
uninterrupted sleep under fairly desirable conditions.
It is compensable working time if the nature of the employee’s
work allows sleeping without interrupting or prejudicing the
performance of his work.
Exceptions:
Power Interruptions
a.
Emergency call outside his regular
working hours where he is required to travel to his
regular place of business or some other work site.
b.
Done through a conveyance provided by
the employer.
c.
Done under the supervision and control
of the employer.
d.
Done under vexing and dangerous
circumstances.

Brownouts of short duration but not exceeding 20
minutes shall be treated as worked or compensable
hours whether used productively by the employees
or not;

Brownouts running for more than 20minutes may
not be treated as hours worked provided that any of
the following conditions are present:
a. The employees can leave their work place or go elsewhere
whether within or without the work premises; or
b. The employees can use the time effectively for their own
interest.