BEST LEGAL PRACTICES IN DESIGNING
HR FORMS, NOTICES AND CONTRACTS
MINIMIZE THE RISK OF LABOR LITIGATION AND IMPROVE
YOUR CHANCES OF WINNING LABOR DISPUTE
Topic Coverage for Day One: Wednesday, July 27, 2016 (9:00 a.m. to 5:00 p.m.)
Pre-employment Forms and Contracts
I.
HR and Labor Laws
II. Concept of Employer-employee relationship
III. Risks of labor dispute
a. Demoralization
b. Unrecoverable Cost
c. Bad precedent
d. Impact on reputation
IV. HR as first line of defense against labor cases
V. Pre-Employment forms and documents
a. Manpower specifications
b. Job descriptions
c. Regular employment vs. temporary employment
i. Permanent employment
ii. Casual
iii. Project
iv. Seasonal
v. Fixed-term
vi. Other forms of employment
d. Table of organization and Position titles
i. Managerial employees
ii. Supervisory employees
iii. Rank and File employees
e. Application Forms
f. Employment checklist
i. Importance of checklist
ii. Compliance with items in checklist as condition precedent to
employment
iii. Non-compliance with checklist in relation to insubordination
g.
h.
i.
j.
Medical results
Offer letter
Appointment letter
Effects of Falsification in employment documents
VI. General principles of contracts
a. Concept of contract in general
b. Basic elements of a contract in general
i. Consent
ii. Object
iii. Consideration
c. Nature of employment contract
i. It is imbued with public interest
ii. Public policy
iii. Employment contract not in writing
iv. Effects of written vs. verbal contract
1. Absence of a written copy of the contract does not negate
existence of contract of employment
v. How the courts view employment contracts
1. Contracts shall be obligatory in whatever form they have
been entered into, provided all essential requisites for
validity are present
d. Other circumstances which may prove presence of employment
relationship
i. Issuance of ID
ii. Issuance of pay slip, cash vouchers, etc., as proof of salary
iii. Daily time record
iv. Reporting of employee to SSS, Philhealth, etc.
v. Job description
vi. Nature of work
e. Parts of an employment contract, in general:
i. Title
ii. Announcement
iii. Parties
iv. Consideration
v. Responsibilities/obligations
vi. Signature
vii. Acknowledgment
f. Standard provisions of an employment contract
i. Purposes and intents (Whereas clauses)
ii. Commencement date
iii. Provisions on labor standards benefits
1. Inclusion/ Exclusion rule
2. Exclusion from labor standards benefits of managerial
employees and other officers and members of managerial
staff
3. Concept of field personnel, workers paid by results, etc.
4. Hours of work
5. Overtime
6. Rest day
7. Holiday pay
8. Service incentive leave
a. Vacation leave
b. Sick/Emergency leave
9. Service charges
10. 13th month pay, etc.
11. Other leave benefits: Gynecological, VAWC, Parental,
Maternity, Paternity, etc.
12. Benefits above the mandated provisions of law
iv. Company rules and regulations
1. Rule on incorporation of documents
v. Non-disclosure/Confidentiality
vi. Non-compete
1. Rules for validity
2. Duration
3. Time
4. Industry
vii. Intellectual property ownership (Copyright, invention, etc.)
viii. Termination clause
1. Failure to qualify
2. Just Cause (Article 282)
3. Authorized Cause (Article 283 and Article 284)
4. Other causes under the Labor Code (Art. 263 [g]; Art. 264
[a])
ix. Resignation
1. 30-day prior notice rule
2. Involuntary servitude; Oppression of employer
3. Liquidated damages
x. Retirement clause (Art. 287, Labor Code)
1. Optional
2. Compulsory
3. Retirement Fund
xi. Clause on withholding of final pay
xii. Authority to deduct from final pay
xiii. Clause on satisfaction of clearance and other exit documents
Topic Coverage for Day Two: Thursday, July 28, 2016 (9:00 a.m. to 5:00 p.m.)
Sample Employment Contracts, Dismissal and Exit Forms
I.
Types of employment contract:
a. Probationary
i. Concept of probationary employment
ii. Six-month probationary rule
iii. How to extend probationary beyond six months
iv. Reasonable standards
v. Apprising newly hired with reasonable standards
1. When to notify employee of the standards for regularization
2. Concept of “failure to qualify”
3. Important provisions in drafting probationary employment
contract
4. Sample of Probationary contract
a. Why is the sample best legal practice?
b. Regularization contract
i. Article 280 of the Labor Code in relation to Article 279 on Security
of Tenure
ii. Concept of “regular from day one”
iii. Performance of directly-related duties
iv. Sample Regularization contract
1. Why is the sample best legal practice?
c. Project employment
i. What is project employment?
ii. Exception from regularization
iii. Requisites of a valid project employment contract
iv. Indicators of valid project employment
v. Sample Project employment contract
1. Why is the sample best legal practice?
d. Seasonal employment contract
i. Nature of seasonal employment
ii. Regular seasonal employee
iii. Sample Seasonal employment contract
1. Why is the sample best legal practice?
e. Fixed-Term Employment
i. Elements of valid fixed-term contract
1. Knowingly and voluntarily agreed upon
2. Absence of moral dominance
3. Expiration clause
f. Casual Employment
i. Temporary activities
ii. Concept of necessary and desirable in the usual business or trade
of employer
iii. Effect of at least one (1) year of service
iv. Sample Casual employment contract
1. Why is the sample best legal practice?
g. Part-time employment
i. Best legal practices
ii. Sample Part-time employment contract
1. Why is the sample best legal practice?
h.
i.
j.
k.
Concept of acting capacity
Special Program for Employment of Students (SPES)
Apprenticeship
Learnership
II. Training Bond
a. Holding period after training
b. Charging of training expenses
c. Reimbursement of cost for failure to observe holding period
III. Rules in case of dispute over contracts
a. Grievance procedure with/ without a union
b. Voluntary arbitration
c. Single Entry Approach
IV. Mandatory conciliation mediation under RA 10396 (March 14, 2013) inserting
Article 228 in the Labor Code
V. Disciplinary Forms and Notices
VI. Review of basic principles and rules:
a. Discipline as a management prerogative
b. Security of Tenure for employees
c. Two aspects of due process
i. Substantive
ii. Procedural
d. Just cause for dismissal and other provisions allowing termination for
lawful cause
i. Article 282 of the Labor Code
ii. Article 263 (g)
iii. Article 264 (a)
e. Grounds for dismissal under Article 282
i. Serious misconduct
ii. Insubordination
iii. Gross and habitual neglect of duty
iv. Fraud or willful breach of trust
v. Other analogous causes
f. Procedural due process
i. Twin requirements:
1. Notice
2. Hearing
ii. Two-Notice rule:
1. Notice to Explain (NTE) or Show-cause memo (SCM)
a. Article 277 of the Labor Code
b. King of Kings Transport Inc. vs. Mamac
2. Final Notice of Dismissal
iii. Hearing/conference
1. Notice of conference
2. Minutes of conference
3. Rules during hearing/conference
VII. Drafting the NTE
a. Statement of charge/s
b. Narration of facts
c. What to avoid
i. Prejudgment
ii. Conclusion of facts
iii. Conclusion of law
d. Period to submit reply
e. Statement of consequence for failure to submit reply
i. Failure to submit explanation is insubordination
ii. Insubordination as a separate offense to the instant charge
f. NTE coupled with preventive suspension
i. Concept of preventive suspension
ii. 30-day max rule
iii. Rules on extension (inclusion in payroll; notice, etc.)
iv. Constructive dismissal
g. Drafting preventive suspension notice
h. Drafting extension of preventive suspension
VIII. Drafting notices to explain for:
a. Theft
b. Falsification
IX. Drafting notice of conference
a. Time, date, venue
b. Desired counsel or support person
c. Statement of consequence for failure to attend hearing
X. Drafting final notice of dismissal
a. Statement of facts
b. Establishing receipt of notices and holding of hearing/conference
c. Applicable rule/s, law/s
d. Application of law to the facts
e. Final notice of dismissal
f. Clause stating “without prejudice to filing of civil or criminal case”
g. Enforcing withholding clause prior to satisfaction of exit documents
h. Enforcing deduction from final pay
XI. Specific rules in drafting notices for AWOL
a. Order to report for work immediately
b. Statement of consequence: “deemed to have abandoned employment”
XII. Suspension as a penalty
a. Procedural due process the same as dismissal
b. Suspension as a penalty vs. preventive suspension
c. Imposing preventive suspension and suspension as a penalty in the same
offense
d. Drafting notice of suspension as a penalty
XIII. Drafting acceptance of resignation
a. Rule as to resignation under Article 285
b. Acceptance: marginal notes and verbal acceptance vs. acceptance in
writing
XIV. Drafting notices not involving the penalty of dismissal
XV.CBA provisions
a. Salient items in the CBA
XVI. Acceptance of resignation
XVII. Clearance form
XVIII. Release, Waiver and Quitclaim
XIX. Notice of bona fide suspension of operation
a. Notice of resumption of operation
b. Notice of resumption of work
XX.Compromise agreement in labor cases
XXI. Tips in drafting any form of employment documents
For inquiries, please call Center for Global Best Practices:
Manila lines (+632) 556-8968 or 69
Manila Telefax (+632) 842-7148 or 59
Baguio line (+63 74) 423-5148
Cebu lines (+63 32) 512-3106 or 07
To download registration form and to see other upcoming seminars, check
www.cgbp.org.