Legal Aspects in Tourism & Hospitality Module 6 PDF

COLLEGE OF HOSPITALITY MANAGEMENT 1ST SEM, A.Y 2024-2025 LEGAL ASPECTS IN TOURISM AND HOSPITALITY MID-TERM PERIOD COVERAGE MODULE 6: OBLIGA...

COLLEGE OF HOSPITALITY MANAGEMENT 1ST SEM, A.Y 2024-2025 LEGAL ASPECTS IN TOURISM AND HOSPITALITY MID-TERM PERIOD COVERAGE MODULE 6: OBLIGATIONS & CONTRACTS Date and Time Allotment Week 4 Objectives: At the end of this module, students should be able to: 1. Define Contract 2. Discuss the Elements of Contract 3. Explain the stages of contract 4. Discuss the Characteristic of Contract 5. Explain Defective Contract I. Lecture A. Contract – is the meeting of the minds between two persons whereby one binds himself, with respect to the others, to give something or to render some service. B. Essential Elements of a Contract Consent – signifies the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. It comprises the following elements: Incapacitated to give consent: Minors Insane or demented Deaf mutes who do not know how to write Incompetent under guardianship Object Certain – it could be any of the following: Thing Right Service An object certain must have the following requisite: A. Objects should be within the commerce of men B. It should be real or possible C. Objects should not be contrary to law Cause – it should be why of the contract or the essential reason which moves the contracting parties to enter into the contract. It must have the following: A. should be in existence. B. should be licit or lawful C. should be true C. Perfection of Contracts According to the CC Art 1319, par 2, the contract is perfected from the moment that the offeror has knowledge of such acceptance, while according to the Article 54 of the Code of Commerce, the contract is perfected from the moment an answer is made accepting the offer. Contract Stages 1. Generation – it includes the preliminary stage or process for the information of the contract. It includes the bargaining of the subject of obligation and the consideration 2. Perfection – or birth of contract 3. Consummation – it is the fulfillment of the purpose for which the contract was constituted. Characteristics of Contracts 1. Obligatory force or character of contracts 2. Autonomy of the Contracts 3. Mutuality of the contracts 4. Relatively of the contracts Defective Contracts 1. Rescissible – it is valid contract because it contains all the essential requisite prescribe by law, but defective due to the damage to either of the contracting parties or third person. 2. Voidable – it is valid until annulled. All essential elements for validity are present, but the element of consent is vitiated either by lack of legal capacity of one of the contracting parties or fraud. 3. Unenforceable contract – those cannot be enforced by a proper action in court unless both of the contracting parties do not possess the required legal capacity. 4. Void – it is contract which is considered to be inexistent by operation of law, thus, confers no right to any party thereto. References: Legal Aspects in Tourism and Hospitality 2020 Author: Danny A. Cabulay and Christine Carpio-Aldeguer & Legal Aspects in Tourism and Hospitality 2019 Author: Mario H. Maranan, Jovid Maricar D. Maranan, Cristina N. Caluza and Atty. Kenneth Lloyd G. Dela Cruz  COLLEGE OF HOSPITALITY MANAGEMENT 1ST SEM, A.Y 2024-2025 LEGAL ASPECTS IN TOURISM AND HOSPITALITY MID-TERM PERIOD COVERAGE MODULE 7: HOSPITALITY AT WORK Date and Time Allotment Week 5 Objectives: At the end of this module, students should be able to: 1. Defined Labor Law 2. Differentiate Labor Standard and Labor Relations 3. Discuss Social Legislation 4. Discuss the Classification of Laws I. Lecture Labor Law – includes all the rules of law governing conditions under which person may work under the control of other person called employers. It may also pertain to the labor standards and labor relation laws governing hours of work, weekly rest periods, minimum wage rates, under labor practices, strikes and lockouts. A. Distinctions between Labor standards and Labor Relations Labor standard – prescribe the terms and conditions of employment as affecting or monetary benefits, hours of work, cost of living allowances, occupational health, safety and welfare of the workers. Labor Relations – is used to denote all matters arising out of employer-employee relationship involving the concerted action on the part of the workers which is usually related with collective bargaining and negotiation. Social Legislation Law - the latter is a law governing the employer-employee relationship while the employee is not “at work” due to hazards arising from employment. It is actually designed to uplift and protect the welfare of the worker and his family, because of the hazards beyond his control which immobilize him from working. B. Classification of Labor Laws Protective Legislation – it is designed to protect the weaker party to the employment contract. Examples: anti-sexual harassment laws, Child labor laws, Laws protecting women against discrimination. Welfare or Social Legislation – it is intended to remove or reduce the insecurity of workers while the latter are not the work due to hazards arising from employment. Examples: SSS law, PAGIBIG  Diplomatic Legislation – It governs the safe use of machinery, hazardous substances, and risks in the working environment. Any employer that doesn't abide by the legislation runs a risk of employees being injured which can be costly to the employer for several reasons. The employee will be off sick which will mean sick pay being paid those designed to settle labor disputes through pacific modes. Examples: grievance machinery or arbitration. Administrative Legislation – those laws creating labor bodies or agencies for administrative purposes. Examples: POEA, DOLE, NLRC or TESDA Labor Relations Legislation – those passed concerning employee organization, concerted activities, or collective bargaining or negotiation activities. Included are those that pertain to fair and unfair practices in labor relations. labor relations are the study and practice of managing unionized employment situations. Labor Standard Relations – those passed prescribing minimum requirements relating to wages, hours of work, cost of living allowances, and other monetary and welfare benefits including occupational, safety and health standard. References: Legal Aspects in Tourism and Hospitality 2020 Author: Danny A. Cabulay and Christine Carpio-Aldeguer & Legal Aspects in Tourism and Hospitality 2019 Author: Mario H. Maranan, Jovid Maricar D. Maranan, Cristina N. Caluza and Atty. Kenneth Lloyd G. Dela Cruz  COLLEGE OF HOSPITALITY MANAGEMENT 1ST SEM, A.Y 2024-2025 LEGAL ASPECTS IN TOURISM AND HOSPITALITY MID-TERM PERIOD COVERAGE MODULE 8: HOSPITALITY AT WORK Date and Time Allotment Week 6 Objectives: At the end of this module, students should be able to: 1. Explain Labor Clause 2. Identify and Explain the Different types of Employees 3. Differentiate Apprentices from Learners 4. Explain the Constitutional Rights of Workers II. Lecture and Discussions of the lesson/s A. Classification of the Employees 1. Special Workers Apprentices – is a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under the law. (Art. 58. (b), the labor Code of the Philippines or PD 442. Learners – are persons hired as trainee in semi-skilled and other industrial occupations which are non- apprentice able and may be learned through on-the job trainings in a relatively short period of time that shall not exceed three (3months) (Art 73, Labor of Code of the Philippines) Handicapped workers – are those earning capacity is impaired either by age, physical or mental deficiency, or injury (Art 79 Labor Code of the Philippines). Handicapped workers – are those earning capacity is impaired either by age, physical or mental deficiency, or injury (Art 79 Labor Code of the Philippines). 2. Casual Employees – are those who performed activities which are not usually necessary or desirable in the usual trade or business of the employer. (Policy Instruction No. 12, which was promulgated by the Minister of Labor on April 23, 1976). 3. Specific project or seasonal employees – are persons who perform work or services which are seasonal in nature. There are two seasons in the Hospitality Industry Peak season Lean season 4. Probationary Employees – are those who are employed on a trial basis. A probationary does not exceed six months from the date the employee started working. 5. Regular Employees – are persons who perform activities, which usually necessary or desirable in the usual business trade of the employer. 6. Managerial Employees – are those who meet the following conditions: Their primary duty consists of the management of the establishment in which they are employed or of a department or subdivision They customarily and regularly direct the work of two or more employees therein. They have the authority to hire or fire other employees of lower rank. Their suggestion and recommendation to hiring and firing and promotion or other change of status of other employees are given particular weight. (Sec 2b, Rule I, Book III, Rules Implementing the Labor Code.) 7. Domestic Servants and Persons – in the personal service of another are those who perform services in the employer’s home which are usually necessary or desirable for the maintenance and enjoyment thereof. (Sec 2d, Rule I, Rules Implementing the Labor Code) 8. Field Personnel – refers to non-agricultural employees who regularly perform their duties away from principal place of business or branch office of the employer and whose actual hours of work in field cannot determined with reasonable certainty. (Sec 27, Rule II, Book III, Rules Implementing the Labor Code) B. Constitutional Rights of Workers 1. Right to Self-organization 2. Right to collective Bargaining 3. Right to security of tenure 4. Right to just and Humane conditions of work 5. Right to collective negotiations 6. Right to peaceful concerted activities 7. Right to strike 8. Right to a living wage 9. Right to participate in policy and decision-making processes 10. Right to just share in the fruits of production Employers Rights 1. Reasonable return on investment 2. Expansion and Growth 3. Exercise management prerogative Termination of Employer - Employee Relationship An employer cannot terminate the services of an employee except for JUST and AUTHORIZED cause (Art 279, 282, 283 and 284) On the other hand, the employee may terminate without just cause, employment relationship be serving a written notice on the employer at least one (1) month in advance. C. Just Causes These are the models of termination of employment contract imputable to the employee’s own acts or omission. The following are just causes for the termination of employee’s contract. Under Article 297 (previously Art. 282) of the Labor Code  1. Serious misconduct or willful disobedience by the employee of the lawful orders of the employer or representative in connection with his work. 2. Gross habitual neglect by the employee of his duties 3. Fraud or willful breach of employee of the trust reposed in him by his employer or duly authorized representative (if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. The employer must provide substantial basis to support its claim of breach of trust) 4. Commission of a crime or offense against person of his employer or any immediate member of his family and his duly authorized representative 5. Other causes analogues to the foregoing. D. Authorized Causes The termination of employment contract is allowed by law since it recognizes the right employers to legitimately decrease labor costs and other circumstances inevitable in the management of business. The following are the authorize causes of the termination of employment contract. 1. Redundancy exist when the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. 2. Retrenchment reductions in the workforce to forestall business losses or stop the hemorrhaging of capital (mass termination) (the reduction of costs/employee for a job or spending in response to economic difficulty) 3. Installation of labor-saving device 4. Closure or cessation of operation of the establishment or undertaking due to financial losses. References: Legal Aspects in Tourism and Hospitality 2020 Author: Danny A. Cabulay and Christine Carpio-Aldeguer & Legal Aspects in Tourism and Hospitality 2019 Author: Mario H. Maranan, Jovid Maricar D. Maranan, Cristina N. Caluza and Atty. Kenneth Lloyd G. Dela Cruz  COLLEGE OF HOSPITALITY MANAGEMENT 1ST SEM, A.Y 2024-2025 LEGAL ASPECTS IN TOURISM AND HOSPITALITY MID-TERM PERIOD COVERAGE MODULE 9: HOSPITALITY AT WORK Date and Time Allotment Week 6 Objectives: At the end of this module, students should be able to: 1. Explain Some Labor Code Provisions Concerning Hours of Work, Rest Periods, Holiday Pay, Leaves and Service Charges 2. Discuss Anti-Sexual Harassment Act of 1995 I. Lecture and Discussions of the lesson/s A. Some Labor code Provisions Concerning Hours of Work, Rest Periods, Holiday Pay, Leaves and Service Charges - Art 83. Normal Hours of Work – the normal hours of workers shall not exceed eight (8) hours a day. - Art 84. Hours worked – Hours worked shall include: a) at all times during which an employee is required to be on duty or to be at prescribed workplace and b) at all times during which an employee is suffered or permitted to work. Rest periods of short duration during working hours shall be counted as hours worked. - Art 85 of the Labor Code – it is the duty of every employer to give his employees regardless of sex, not less than sixty (60) minutes time off for their regular meals. - Art 86. Night Shift Differential – every employee shall be paid a night shift differential or not less than ten percent (10%) of his wage for each hour work performed between ten o’clock in the evening and six o’clock in the morning. - Art 87, Overtime work – overtime work may perform beyond eight (8) hours a day provided by the employee is paid overtime work, an additional compensation equivalent to his regular wage plus at least twenty five percent (25%) thereof. - Art 96, Service Charges – all service charges collected by hotels, restaurants and similar establishment shall be distributed at the rate of eighty-five (85%) for all covered employees and fifteen percent (15%) for the management. The share of employees shall be equally distributed among them. Anti-Sexual Harassment Act of 199 B. Anti-Sexual Harassment Act of 1995 - Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:  REPUBLIC ACT NO 7877 “AN ACT DECLARING SEXUAL HARASSMENT UNLAWFULL IN THE EMPLOYMENT, EDUCATION OR TRAINING ENVIRONMENT, AND FOR OTHER PURPOSE” SECTION 1. Title. – This Act shall be known as the “Anti-Sexual Harassment Act of 1995.” SECTION 2. Declaration of Policy. – The State shall value the dignity of every individual, enhance the development of its human resources, guarantee full respect for human rights, and uphold the dignity of workers, employees, applicants for employment, students or those undergoing training, instruction or education. Towards this end, all forms of sexual harassment in the employment, education or training environment are hereby declared unlawful. SECTION 3. Work, Education or Training -Related, Sexual Harassment – Defined Work, education or training- related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, Trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. (a) In a work-related or employment environment, sexual harassment is committed when: (1) The sexual favor is made as a condition in the hiring or in the employment, reemployment or continued employment of said individual, or in granting said individual favorable compensation, terms of conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; (2) The above acts would impair the employee’s rights or privileges under existing labor laws; or (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee. In the case of a work-related environment, the committee shall be composed of at least one (1) representative each from the management, the union, if any, the employees from the supervisory rank, and from the rank-and-file employees. In the case of the educational or training institution, the committee shall be composed of at least one (1) representative from the administration, the trainers, instructors, professors or coaches and students or trainees, as the case may be. The employer or head of office, educational or training institution shall disseminate or post a copy of this Act for the information of all concerned. SECTION 5. Liability of the Employer, Head of Office, Educational or Training Institution. – The employer or head of office, educational or training institution shall be solidarity liable for damages arising from the acts of sexual harassment committed in the employment, education or training environment if the employer or head of office, educational or training institution is informed of such acts by the offended party and no immediate action is taken. SECTION 6. Independent Action for Damages. – Nothing in this Act shall preclude the victim of work, education or training-related sexual harassment from instituting a separate and independent action for damages and other affirmative relief. SECTION 7. Penalties. – Any person who violates the provisions of this Act shall, upon conviction, be penalized by imprisonment of not less than one (1) month nor more than six (6) months, or a fine of not less than ten thousand pesos (P10,000) nor more than twenty thousand pesos (P20,000), or both such fine and imprisonment at the discretion of the court. Any action arising from the violation of the provisions of this Act shall prescribe in three (3) years. SECTION 8. Separability Clause. – If any portion or provision of this Act is declared void or unconstitutional, the remaining portions or provisions hereof shall not be affected by such declaration. SECTION 9. Repealing Clause. – All laws, decrees, orders, rules and regulations, other issuances, or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. SECTION 10. Effectivity Clause. - This Act shall take effect fifteen (15) days after its complete publication in at least two (2) national newspapers of general circulation. References: Legal Aspects in Tourism and Hospitality 2020 Author: Danny A. Cabulay and Christine Carpio-Aldeguer & Legal Aspects in Tourism and Hospitality 2019 Author: Mario H. Maranan, Jovid Maricar D. Maranan, Cristina N. Caluza and Atty. Kenneth Lloyd G. Dela Cruz  COLLEGE OF HOSPITALITY MANAGEMENT 1ST SEM, A.Y 2024-2025 LEGAL ASPECTS IN TOURISM AND HOSPITALITY MID-TERM PERIOD COVERAGE MODULE 10: LAWS ON TRAVEL Date and Time Allotment Week 7 Objectives: At the end of this module, students should be able to: 1.Defined Transportation 2. Determine the Common Carrier 3. Discuss the Bill of Lading 4.Explain the Warsaw Convention 5. Discuss the Air Freedom Rights I. Lecture and Discussions of the lesson/s A. Transportation – transportation is one whereby a certain person or association of persons obligate themselves to transport persons, things or news from one place to another. Common Carriers – are persons, corporations, firms or associations engaged in business of carrying or transporting passengers or goods or both by land, water and air, for compensation, offering their services to the public (Art.1732, Civil code of the Philippines) Private carriers – are those who transport or undertake to transport in a particular instance for hire or reward. COMMON CARRIER PRIVATE CARRIER Holds himself out in common that is to all Agrees in some special cases with some persons who choose to carry for hire private individual to carry for hire Bound to carry for all who offer such goods It is not bound to carry for any reason, unless as it is accustomed to carry and tender it enters a special agreement to do so. reasonable compensation for carrying them Not for public and not subject to regulation It is for public service and subject to Not required to render extraordinary regulation diligence Required to exercise extraordinary diligence I. Elements of Common Carrier a) Business of transportation b) For compensation c) For public service Bill of lading - is a document of title, a receipt for shipped goods, and a contract between a carrier and shipper. This document must accompany the shipped goods and must be signed by an authorized representative from the carrier, shipper, and receiver. B. Warsaw Convention - Convention for the Unification of certain rules relating to international carriage by air, commonly known as the Warsaw Convention, is an international convention which regulates liability for international carriage of persons, luggage, or goods performed by aircraft for reward. - An international convention which regulates liability for international carriage of persons, luggage or goods performed by aircraft for reward. In particular, the war saw convention: a) mandates carriers to issue passenger tickets b) requires carriers to issue baggage checks for checked luggage c) creates a limitation period of 2 years which claim must be brought (article 29) d) limits a carrier’s liability Air Freedom Rights - The freedom to carry traffic between two domestic points in a foreign country on a flight that either originated in or is destined for the carrier's home country. Also referred to as “cabotage” privileges. First Freedom of the Air The right or privilege, in respect of scheduled international air services, granted by one State to another State or States to fly across its territory without landing. Second Freedom of the Air The right or privilege, in respect of scheduled international air services, granted by one State to another State or States to land in its territory for non-traffic purposes. Third Freedom of The Air The right or privilege, in respect of scheduled international air services, granted by one State to another State to put down, in the territory of the first State, traffic coming from the home State of the carrier. Fourth Freedom of The Air The right or privilege, in respect of scheduled international air services, granted by one State to another State to take on, in the territory of the first State, traffic destined for the home State of the carrier. Fifth Freedom of The Air The right or privilege, in respect of scheduled international air services, granted by one State to another State to put down and to take on, in the territory of the first State, traffic coming from or destined to a third State. Sixth Freedom of The Air The right or privilege, in respect of scheduled international air services, of transporting, via the home State of the carrier, traffic moving between two other States. Seventh Freedom of The Air The right or privilege, in respect of scheduled international air services, granted by one State to another State, of transporting traffic between the territory of the granting State and any third State with no requirement to include on such operation any point in the territory of the recipient State, i.e. the service need not connect to or be an extension of any service to/from the home State of the carrier. Eighth Freedom of The Air The right or privilege, in respect of scheduled international air services, of transporting cabotage traffic between two points in the territory of the granting State on a service which originates or terminates in the home country of the foreign carrier or outside the territory of the granting State. Ninth Freedom of The Air The right or privilege of transporting cabotage traffic of the granting State on a service performed entirely within the territory of the granting State. References: Legal Aspects in Tourism and Hospitality 2020 Author: Danny A. Cabulay and Christine Carpio-Aldeguer & Legal Aspects in Tourism and Hospitality 2019 Author: Mario H. Maranan, Jovid Maricar D. Maranan, Cristina N. Caluza and Atty. Kenneth Lloyd G. Dela Cruz