LABOR-SYLLABUS-1.docx

**I. Fundamental Principles and Policies** A. Constitutional provisions 1.Article II, Secs. 9 -- promote full employment, a rising standard of living and an improved quality of life for all Sed 10- Promote social justice in all phases of national development Sec 11- Values dignity, and full res...

**I. Fundamental Principles and Policies** A. Constitutional provisions 1.Article II, Secs. 9 -- promote full employment, a rising standard of living and an improved quality of life for all Sed 10- Promote social justice in all phases of national development Sec 11- Values dignity, and full respect to human rights Sec 13- Youth Sec -14- women Sec 18- labor as primary social economic work force Sec -20 -- indispensable role of private sector 2.Article III, Sec. 1- due process Sec 4-freedom of speech, expression, press, and right to peaceably assemble Sec 7- right to information Sec 8- right to form unions Sec 10- right to impairment of contracts Sec 16, 18(2) **AGABON vs. NLRC, G.R. No. 158693, 17 Nov. 2004** **(DUE PROCESS)** **Dismissed for abandonment of work, SC ruled that there is a valid dismissal however the employer did not followed the TWIN REQUIREMENT RULE in due process.** **JUST CAUSES FOR TERMINATION** 1. Serious Misconduct or willful disobedience 2. Gross Habitual Neglect of duty 3. Fraud or willful breach by the employee of the trust reposed in him by the employer 4. Comission of a crime or offense by the employee against his employer or any of his family or his duly authorized representative 5. Other causes analogous to the foregoing. **Twin Requirement rule:** 1. **First notice -- A Written Notice Served on the employee specifying the grounds for termination, and giving the said employee reasonable opportunity within to explain his side.** 2. **Second Notice- Notice of Termination served on the employee indicating that upon due consideration of all the circumstances, justify the termination** **CAUSE (J/A)** **DUE PROCESS** **DISMISSAL** **REMARKS** ----------------- ----------------- ----------------- -------------------------------- **YES** **YES** **LEGAL** **NO** **NO** **ILLEGAL** **REINSTATEMENT** **NO** **YES** **ILLEGAL** **REINSTATEMENT** **YES** **NO** **INEFFECTUAL** **PAYMENT OF NOMINAL DAMAGES** **Abbot Laboratories vs. Alcaraz, G.R. No. 192571, 23 July 2013** **(Probationary Employee)** **Twin Requirement Rules is not applicable for termination of probationary employment.** **Grounds For termination of probationary employee** 1. **Just Cause** 2. **Authorized Cause** 3. **When he fails to qualify as regular employee in accordance with reasonable standard prescribed by the employer.** **Two requirements when dealing with a probationary employee** 1. **Employer must communicate the regularization standard to the probationary employee** 2. **The employer must take such communication at the time of the probationary employee's engagement.** **Failure to comply with either, the employee is deemed as a regular and not a probationary employee.** **Yrasuegui vs. PAL, G.R. No. 162994, 17 October 2008** **(Bonifide Occupational Qualification)** 1. The employment **qualification is reasonably related to the essential operation of the job involve**d 2. That there is **factual basis for believing that all or substantially** **all persons meeting the qualification would be unable to properly perform the duties of the job.** ** Duncan Association vs. Glazo, G.R. 168081** -**Policy prohibiting an employee from having a relationship with an employee of a competitor company is a valid exercise of management prerogative**. -it is the right of the employer to guard its trade secrets and information from competitors -indeed, while our laws endeavor to give life to the constitutional policy on social justice and the protection of labor, it does not mean that every labor dispute will be decided in favor of the workers, **the law also recognizes that management has the rights which are also entitled to respect and enforcement in the interest of fair play.** 3.**Article XIII, Secs. 1- , 2, 3, 13, 14** **- ensure protection of labor** **-promote full employment** **-equal protection of labor regardless of sex, creed and age** **-regulates the relation of workers and employers** **-assure the rights of employee to self organization, collective bargaining, security of tenure and just and human conditions of work** Manila Electric Co. vs. Quisumbing, G.R. No. 127598 4.Article IX, B-Section 2 (1) CBA B. Civil Code 1.Article 19 Every person who exercise his rights and in performance of his duties,act with justice give everyone his due, observed honesty and good faith. (Principle of abuse of rights) 2.Article 1700 Servidad v. NLRC (305 SCRA 49, 1999) Cielo v. NLRC (193 SCRA 410, 1991) Leyte Geothermal Power Progressive Employees Union-ALU-TUCP v. PNOC-EDC (GR No. 170351, March 30, 2011) 3.Article 1702 **II. Preliminary Considerations:** 1. **Labor Law Definition** - Is the body of las rules and regulations enacted or issued by the state to promote the welfare of the employees and regulate their relationship with their relationship.\\ 2. **General Classifications of Labor Laws** a. **Labor Standards --** minimum requirements prescribed by existing laws, rules and regulations and other issuances relating to wages, hours of work cost of living allowances and other monetary and welfare benefits including those set by occupational safety standards b. **Labor Relations-** Defines the status, rights and duties and the institutional mechanism that govern the individual and collective interactions of employers, employees or their representatative. c. Welfare Laws d. The Labor Code a. **Effectivity Article 2 Labor Code** Article 4 Labor Code b. **Construction in favor of labor** In case of doubt, the application of labor code is in favor of the labor Ambiguity in CBA? **Civil code will govern because it is a contract between the parties** Peñaflor v outdoor clothing 610 scra 497 About presentation of evidence. c. Applicability of the labor code General Rule: Workers in private sector \- coverage clause GOCC Created by Special Charter- CSC GOCC Created by General Law (Corporation Code) -- Labor Code \- exclusionary clause \- Article 6 Labor Code e. **Employer- Employee Relationship** a. **Test of employer-employee relationship** **(Four Fold Test)** **- Economic reality test** \- The proper standard of economic dependence is whether the worker is dependent on the alleged employer for his continued employment in t he line of business. **Sunripe Coconut Products v. CIR 83 Phil 518** ; TEST IN DETERMINING WHETHER A WORKER IS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR.---The requirement imposed on the \"parers\" and \"shellers\" to the effect that \"the nuts are pared whole or that there is not much meat wasted,\" in effect limits or controls the means or details by which said workers are to accomplish their services. It is inconceivable that the \"parers\" and \"shellers\" in order to meet the requirement of the petitioner, would not follow a uniform standard in the performance of their work. **- Control Test** **-**Power of control is the most significant factor in four fold test. The right to control extends not only over the work done but over the means and method by which the employee must accomplish the work. **Elements of Employer-Employee Relationship** -Employer's selection and engagement of the employee -Payment of wages -Power to dismiss **[-Power to control- most significant]** **LVN Pictures v. Philippine Musicians Guild, 110 Phil 725** The musical directors in the instant case have! no control over the musicians involved in the case. Said directors control neither the music to be played, nor the musicians playing it. The film companies summon the musicians to work, through the musical directors. The film companies, thru the musical directors, provide the transportation to and from the studio. The film companies furnish meal at dinner time. The motion picture director, who is an employee of the company---not the musical director--- supervises the recording of the musicians and tells them what to do in every detail, and solely directs the performance of the musicians before the camera. *Held:* An employer-employee relationship exists between the musicians and the film companies. The relationship exists where the person for whom the services are performed reserves a right to control not only the end to be achieved but also the means to be used in reaching such an end. **Almirez v. Infinite Loop Technology 481 SCRA 364** To ascertain the existence of an employer-employee relationship, jurisprudence has invariably applied the four-fold test, to wit: (1) the manner of selection and engagement; (2) the payment of wages; (3) the presence or absence of the power of dismissal; and (4) the presence or absence of the power of control. Of these four, the last one, the so called \"control test\" is commonly regarded as the most crucial and determinative indicator of the presence or absence of an employer-employee relationship Under the control test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end achieved, but also the manner and means to be used in reaching that end. From the earlier-quoted scope of petitioner\'s professional services, there is no showing of a power of control over petitioner. The services to be performed by her specified what she needed to achieve but not on how she was to go about it. Contrary to the finding of the Labor Arbiter, as affirmed by the NLRC, above-quoted paragraph No. 6 of the \"Scope of \[petitioner\'s\] Professional Services\" requiring her to \"\[m\]ake reports and recommendations to the company management team regarding work progress, revisions and improvement of process design on a regular basis as required by company management team\" does not \"show that the company\'s management team exercises control over the means and methods in the performance of her duties as Refinery Process Design Engineer.\" Having hired petitioner\'s professional services on account of her \"expertise and qualifications\" as petitioner herself proffers in her Position Paper,16 the company naturally expected to be updated regularly of her \"work progress,\" if any, on the project for which she was specifically hired **Felicilda v. Uy GR 221241, September 14, 2016** Control Test; The power of control refers merely to the existence of the power. It is not essential for the employer to actually supervise the performance of duties of the employee, as it is sufficient that the former has a right to wield the power.---The presence of the element of control, which is the most important element to determine the existence or absence of employment relationship, can be safely deduced from the fact that: (a) respondent owned the trucks that were assigned to petitioner; (b) the cargoes loaded in the said trucks were exclusively for respondent's clients; and (c) the schedule and route to be followed by petitioner were exclusively determined by respondent. The latter's claim that petitioner was permitted to render service to other companies was not substantiated and there was no showing that he indeed worked as truck driver for other companies. Given all these considerations, while petitioner was free to carry out his duties as truck driver, it cannot be pretended that respondent, nonetheless, exercised control over the means and methods by which the former was to accomplish his work. To reiterate, the power of control refers merely to the existence of the power. It is not essential for the employer to actually supervise the performance of duties of the employee, as it is sufficient that the former has a right to wield the power, as in this case **Viana v Al-Lagadan 99 Phil. 408** In dt-termining the existence of employer-employee relationship, the following\' elements are generally considered namely: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee\'s conduct---although the latter is the most important element **Compania Maritima v cabagnot 107 Phil 873** ---Although there appears to be no written contract of employment, where it appears that the shipping company owns the vessel where the deceased was assigned as gangwayman, and the salary of the deceased was paid directly from its funds, there was an employer-employee relationship between the company and the deceased. **NAMAWU v Valero 132 SCRA 578** The test of the existence of "employer and employee relationship" is whether there is an understanding between the parties that one is to render personal services to or for the benefit of the other, and recognition by them of the right of one to order and control the other in the performance of the work and to direct the manner and method of performance Art. 97 of the Labor Code Chartered Bank v. Constantino 56 Phil 717, 720 Cosmopolitan Funeral Homes v. Maalat 187 SCRA 108 SSS v CA 156 SCRA 383 **[INDEPENDENT CONTRACTOR - NO CONTROL]** **Insular Life v NLRC 179 SCRA 459** -**Insurance Agent is Independent Contractor** Logically, the line should be drawn between rules that merely serve as guidelines towards the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it, and those that control or fix the methodology and bind or restrict the party hired to the use of such means. The first, which aim only to promote the result, create no employer-employee relationship unlike the second, which address both the result and the means used to achieve it. The distinction acquires particular relevance in the case of an enterprise affected with public interest, as is the business of insurance, and is on that account subject to regulation by the State with respect, not only to the relations between insurer and insured but also to the internal affairs of the insurance company. Rules and regulations governing the conduct of the business are provided for in the Insurance Code and enforced by the Insurance Commissioner. It is, therefore, usual and expected for an insurance company to promulgate a set of rules to guide its commission agents in selling its policies that they may not run afoul of the law and what it requires or prohibits. Of such a character are the rules which prescribe the qualifications of persons who may be insured, subject insurance applications to processing and approval by the Company, and also reserve to the Company the determination of the premiums to be paid and the schedules of payment. None of these really invades the agent's contractual prerogative to adopt his own selling methods or to sell insurance at his own time and convenience, hence cannot justifiably be said to establish an employer-employee relationship between him and the Company. **Atok Big Wedge Company v Gison GR 169510 August 8, 2011** The so-called "control test" is commonly regarded the most crucial and determinative indicator of the presence or absence of an employer-employee relationship.---To ascertain the existence of an employer-employee relationship jurisprudence has invariably adhered to the four-fold test, to wit: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee's conduct, or the so-called "control test." Of these four, the last one is the most important. The so-called "control test" is commonly regarded as the most crucial and determinative indicator of the presence or absence of an employer- employee relationship. Under the control test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end achieved, but also the manner and means to be used in reaching that end **Orozco v. CA 562 SCRA 36** **Independent contractor** The newspaper's power to approve or reject publication of any specific article she wrote for her column cannot be the control contemplated in the "control test," as it is but logical that one who commissions another to do a piece of work should have the right to accept or reject the product. The important factor to consider in the "control test" is still the element of control over how the work itself is done, not just the end result thereof. In contrast, a regular reporteris not as independent in doing his or her work for the newspaper. We note the common practice in the newspaper business of assigning its regular reporters to cover specific subjects, geographical locations, government agencies, or areas of concern, more commonly referred to as "beats." A reporter must produce stories within his or her particular beat and cannot switch to another beat without permission from the editor. In most newspapers also, a reporter must inform the editor about the story that he or she is working on for the day. The story or article must also be submitted to the editor at a specified time. Moreover, the editor can easily pull out a reporter from one beat and ask him or her to cover another beat, if the need arises. f. **Categories of employees** a. **Managerial --** Does that have, **prerogative to execute managerial policies, power to hire and fire employee** b. **Supervisory-** has the **power to recommend managerial actions** c. **Rank and file --** Neither supervisory or Managerial g. Statutory Classification of Employment a. **Regular Employment** the law provides for two (2) types of regular employees namely: 1. Those who are engaged to performed activities and which are **usually necessary or desirable in the usual business or trade of the employer.** 2. Those who have rendered at least one year of service, whether continuous or broken. With respect to the activity in which they are employed. **Art. 294 of the Labor Code** **Art. 295 of the Labor Code** b. **Non-regular employment** **- Project employment** The employee is hired under a contract which **specifies that the employment exists when the employee is hired under a contract which specifies that the employment will last for specific project** or **undertaking, the** completion or termination of which is determined at the time of engagement **Requisites** 1. The Employee was **[assigned to carry out specific project or undertaking]** 2. The duration and scope of which were **[specified at the time the employee was engaged]** for such project. **- Seasonal employment** As those whose work engagement is **[seasonal in nature] and** the employment is only [for **the duration of the season.**] \- **Fixed term employment** As a type of **employment "Embodied in a contract specifying that the services of the employee** shall be engaged [**only for a definite period, the termination of which occurs upon the expiration of said** period **irrespective of just cause, and regardless of the activity the employee** ]**is** called upon to perform. Requisite 1. V**oluntary Agreed, without fraud, forc**e 2. **In equal footing** **- Probationary employment** A **probationary employee is one who i[s placed on trial by an employer]**, during which the latter **[determines whether or not the former is qualified]** for permanent employment. **- Casual employment** Performed job which is [ **merely incidental to the usual trade or business**] of the employer **Art. 296 of the Labor Code** **UST v. Samahang Manggagawa ng UST et. al GR 184262 April 24, 2017** the law provides for two (2) types of regular employees namely: 1. Those who are engaged to performed activities and which are **usually necessary or desirable in the usual business or trade of the employer.** 2. **Those who have rendered at least one year of service, whether continuous or broken**. With respect to the activity in which they are employed. Facts: Samahang manggagawa ng UST filed a case for illegal dismissal against the UST From 1990-1999 they were hired repeteadly to perform various maintenance duties within the campus such as laborer, mason, tinsmith painter, electrician, welder and carpenter they invoke that they should be deemed regular employee because their services are necessary and desirable to the business of UST, UST contends that they were merely hired on per-project basis, as evidence by numerous contractual employee appointments (CEA's) LA Ruling- they should be a regular employee NLRC Ruling- They cannot be a regular employee CA Ruling - Reverse the ruling of NLRC and they should be a regular employee ISSUE: WON They are regular employee? Ruling: Yes, They were hired repeatedly for various periods spanning the years of 1990-1999 Since there work is not within the ambit of first category. Nontheless it is clear that they fall on the second category of regular employee. They should be regular employee with respect to the activities for which they were hired for as long as such activities exist. **Carpio v. Modair Manila Co. ltd. GR 239622, June 21, 2021** **(Contractual to Regular employee)** PROJECT BASE TO REGULAR EMPLOYEE Project Based Employee- when the employee is hired under a contract which specifies that the employment will last only for a specific project or undertaking, the completion or termination of which determined at the time of engagement FACTS: Carpio has been employed as a contractor employee (per project basis) designated as electrician 3 from october 1998 to april 10 2013, but no evidence of his employment from 1998 to 2008, only 2008 onwards. Carpio was hired for a various project and the last was NYK TECH PARK for a duration of August 26, 2012 to MArch 25, 2013. two weeks before the completion of project carpio will received a notice to remind him that the project will be ceased, after the project ended he signed a quit claimed whereby he waived any claims against modair. Despite executing the above instrument carpio filed a complaint for illegal dismissal. LA- Dismissed carpios complaint NLRC- reversed the ruling of LA CA- Granted Modairs petition Carpio is not a regular employee ISSUE: Whether Carpio is a Project-based or Regular Employee? Ruling: Yes, Carpio is a regular employee, The certificate of employment indicated that carpio served as modair's electrician 3 since 1998 which modair's did not deny, also carpio presented regular payslipsfrom 2001 to 2010. carpio successive service as electrian 3 in numerous construction projects manifested the vitality and indispensability of his work to the construction business of Modair, Very revealing also are the terms of modair's memoranda, which state that carpio will be "notified accordingly for re-contract if his services will be again needed. Such language discloses modair's continuing reliance on carpio's services in sum carpio's engagement, if it were all project-based at the outset; had already ripened to regular status. **UNIVERSAL ROBINA VS NAMA-URSUMCO-NFL** **SEASONAL EMPLOYEE TO REGULAR EMPLOYEE** Seasonal employee- Employees as those work or engagement i**[s seasonal in nature and the employment is only for duration of the season.]** **Seasonal employment becomes regular seasonal employment when the employees are called to work from time to time**. On the other hand those who are employed for a single season remain as seasonal employee Facts: Petioner universal robina engaged in sugar miling business and NAMA-URSUMCO-NFL a legitimate labor organization, successfully negotiate and enter into a CBA and enumerated in the CBA that the classification of employment in URSUMCO is Permanent or regular employee and regular seasonal employee. Respondent (NAMA-URSUMCO-NFL) sought to change the employment status of concerned employee from regular seasonal to Permanent regular for leveling the salaries. They alleged that they are performing the same work as regular employee during off-miling season. Petitioner contends that they are estopped from questioning since the classification agreed upon by the parties in CBA are Permanent and Regular seasonal employee Regular seasonal employee only performed work during the milling season and there is no work done during of off-miling period as the period is devoted for repair. VA- ruled in favor of the respondent (NAMA-URSUMCO) CA- CA affirmed the decision of VA, the concerned regular seasonal employees were not temporarily laid-off duringthe off-miling season as they were tasked to perform repair and up-keep works. Issue: WON NAMA-URSUMCO employees are regular employees or permanent employees. Ruling: Yes, they are regular employee, the concerned URSUMCO employees are performing work for URSUMCO even during the off-miling season as they are repeatedly engaged in the conduct of repairs on the machines and equipment, strictly speaking, they cannot be classified either regular seasonal employees or seasonal employees as their work extended beyond the miling season. The nature of the activities performed by the employees, considering the employer's nature of business, and the duration and scope of work to be done factor heavily in determining the nature of employment. **Inocentes et.al v R. Syjuco Construction GR 237020, July 29, 2019** PROJECT BASE ABSENCE OF SPECIFIC TERM, THE PRESUMPTION IS REGULAR EMPLOYEE. FACTS: Petitioners dominic inocentes and others filed a complaint for constuctive dismissal against R.syjuco construction inc. (RSCI) They claimed that RSCI a construction corporation employedthem as construction worker. They alleged that they were never received any benefits such as Overtime pay, Night differential, 13^th^ month and other incentives. One day they went to work but they were denied entry on the jobsite. Hence they filed a constructive dismissal and money claims against respondents. Respondents averred that petitioner were under project employment and mat they did not work continously because their assignments depended on the availability of projects. They are not constructively dismissed, they were separated from work due to completion of work assignments. They stressed that RSCI was not large construction company and most of its project involved small structure that could be finished in a few months. Ruling of LA- Legal dismissal NLRC- Illegal Dismissal CA- Legal Dismissal ISSUE; WON Inocentes and others are project based or Regular employee Ruling: Yes, they are regular employee To determine whether notice was given to them that they were being engaged just for a specific project, which notice must be made at the time of hiring. However no such prior notice was given by respondent. The burden of proof to prove project employment lies on the employer, the employer must established that. 1. The employee was assigned to carry out a particular project or undertaking; and 2. The duration and scope of which was specified at the time of engagement. However, respondent didi not prove that they informed petitioners at the time of engagement that they were being engage as project employees. The duration anda scope of their work was without prior notice to the petitioners. While there is lack of written contract. The presumption is that the employees are regular employees prevail. **Regala v. Manila Hotel GR 204684, October 5, 2020** FIXED TERM EMPLOYMENT- as a type of employment embodied in the contract specifying that the services of the employee shall be engage only for a definite period, the termination occurs upon the expirarion of said period, irrespective of the existince of just cause. Facts: Regala was hired as waiter and assigned as food and beverage department of MHC, regala worked for 6 days every week and was paid a daily salary, also the MHC remitted contributions in Regala's behalf to the SSS. However despite having rendered services to MHC for several years he was not recognized as a regular employee, and claimed that he was constructively dismissed because he's work days reduced to 2 days from normal 5 working days resulting to dimunition of his take home pay. MHC denied that regala is its regular employee, they claimed that he is a mere freelance or extra waiter. MHC presented a sample fixed-term service contracts, covering his supposed temporaryh engagement in MHC from march 1, 2010 to march 3 2010. MHC contended that Regala and MHC agree on a specific duration of engagement depending in the requirement of the hotel in a given period. MHC argued that there can be no illegal dismissal since the expiration of the period under regala's service agreements simply caused the natural cessation of his fixed term employment with MHC LA- Dissmissed the complaint of Regala NLRC- Reversed and set aside the decision of LA found that he is constructively dismissed CA- Granted and set aside the decision of NLRC ISSUE: WON regalas was fix-term employee or regular employee Ruling; Yes, Regalas was a regular employee of MHC, regala was employed since february 2000 Also while under fix-term regalas is performing activities which are usually necessary and desirable in the business or trade of MHC Second the fact alone that regala was alloerd to work on several occasion under various service agreements, thus the continuing need for his services for the past several years is also sufficient of the indispensibility of his duties as waiter to MHC's *The fixed term character of employment essentially refers to the period agreed upon between the employer and the employee accordingly the decisive determinant in term employment should not be the activities that the employee called upon to perform but the dat certain agreed upon by the parties for commencement and termination of their employment relationship. Specification of the date of termination is significant because an employee's employment shall cease upon termination date without need of notice.* *In sum regala attained regular status long before he executed the serice agreement considering that the time he signed in march 2010 he has already been employee of MHC for 9 years, the fix term contract which regala executed was meant to preclude regala from attaining regular employment. It should be struck down being contrary to moral public policy, contrary to law* *Is the a contract of adhesion if must be interpret against who made the contract and in favor of the weaker party.* **Moral v. Momentum Properties Management GR 226240, March 6, 2019** PROBATIONARY EMPLOYEE- is the one who is placed on a trial by an employer, during which the latter determines whether or nor the former is qualified for permanent employment. Facts: petitioner filed a compliant for illegal dismissal against her employer, petitioner was hired by the respondent as a probationary employee designating her as a leasing assistant, she work 8 hours a day, six months after her employment specifically decmber 27, 2013, whe was informed of her dismissal and was advised to no longer report for work. She contented that respondent failed to provide any noitice or justifiable cause why her employment was being severed. Respondent averred that in line with the provisions of their employment agreement, petitioner was subjected to the respondent evaluation procedure on the fifth month. Hence the over-all performance and capacity failed to meet the standards set by the employer. Poor evaluation score. LA- Illegaly dismissed NLRC- affirmed the decision of LA CA- granted the petition and set aside the decision of NLRC, the status of petitioner as probationary employee was established , it was established that petitioner receuved abysmal scores in a series of aptitude test that she took before her six months probationary employment were done. ISSUE; WON petitioner MYRA is Probationary or Regular employee. Ruling: Yes, petitioner is a probationary employee A probationary employee is one who is placed on trial by employer during which the latter deterines whether or not the former is qualified for a permanent employment, by virtue if a probationary employment an employer Is given opportunity to observed the fitness and competency of a probationary employee. And the employee should prove himself that he is qualified for the position that she meet the reasona ble standards for permanent employment As a general rule probationary employent cannot exceed six months, otherwise the employee concerned shall be regarded as a regular employee, more over it is indispensable in probationary employment that the employer informs the employee of the reasonable standards that will be used as basis for her regularization at the time of her engagement. In the event employer fails to comply with this the employee is considered a regular employee. Petitioner is aware that her regularization would depend on her ability and capacity to fulfill the requirements of her position, that her failure to perform give respondent a valid cause to terminate her probationary employment **Sec. 5(b) Rule I Book VI IRR of the Labor Code** **Erectors, Inc V. NLRC 163 SCRA 104** FACTS: an overseas employment contract which private respondent allegedly signed on july 2 1979 wherein he was appointed by petitioner as senior project manager in a project in saudi arabia. Prior to his deployment respondent was assigned to local projects from august 16, 1979 until october 3, 1979 in order to familiarize him with its operations. October 3 private respondent left for saudi arabia After six month he went back to the philippines for a 15 days vacation from april 8-24, 1980, however without being informed he was terminated, and new appointment was given to him. However the petitioner and private respondent compomise agreement was short lived august 30, 1980 the services of the latter were terminated. Thus he filed a complaint for illegal dismissal, he contend that he had rendered service for more than a year from august 16, 1979 to august 30, 1980 Petitioner contention that is was not continuous pursuant to the new appointment on april 24, 1980 Issue: WON regular employee Ruling: yes regular employee, as private respondent rendred more than one year if service he is by express provision of law considered a regular employee nothwithstanding his deployment in saudi arabia for six months. **Philippine geothermal v NLRC 189 SCRA 211** FACTS: Private respondent are employees of the petitioner getothermal occupying various position ranging from carpenter to clerk II under individual contract categorized as contrctual employment with a period of 15 days to 3 months these contracts were renewed regularly as a result private respondents rendered service from 3 to 5 years until 1983 to 1984 But petitioner entered with a job contrcting agreement who supplies it with skilled manpower and replaced them with so called contract workers Respondent filed a case for illegal lock-out and unfair labor practice. LA- ruled in favor of respondent/employee NLRC- Affirmed the decision ISSUE; WON respondents may be considered as regular employee Ruling: Regular employment attaches to casual employement on the day immediately after the end of his first year if service. **III. Recruitment and Placement of Workers** **1.Meaning of recruitment and placement** **Article 13(b) Labor Code** -Recruitment and placement refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers and include 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. **NOTE!** - **THE NUMBER OF PERSONS DEALTH WITH IS NOT AN ESSENTIAL INGRIDIENT. Even only only prospective worker is involved. (People vs Panis)** **LICENSE VS AUTHORITY** **[LICENSE] means a document iissued by DOLE authorizing a person or entity to [OPERATE A PRIVATE EMPLOYMENT AGENCY] while [AUTHORITY ]**means a document issued by DOLE authorizing a person or association **[to ENAGAGE IN RECRUITMENT AND PLACEMENT ACTIVITIES.]** **NOTE! AUTHORITY SA TAO LANG!** **PRIVATE EMPLOYMENT AGENCY VS PRIVATE RECRUITMENT ENTITY** **[PRIVATE FEE- CHARGING EMPLOYMENT AGENCY] ENGAGE IN RECRUITMENT AND PLACEMENT OF WORKERS [FOR A FEE CHARGED DIRECTLY OR INDIRECTLY FROM THE WORKERS] OR EMPLPOYERS, while P[RIVATE RECRUITMENT ENTIT]Y was engage in the recruitment and placement of workers locally or overseas [WITHOUT CHARGING DIRECTLY OR INDIRECTLY ANY FEE FROM THE WORKERS OR EMPLOYERS.]** **People v Manalang G.R. No. 198015, January 20, 2021** Facts: manalang was charged with illegal recruitment in large scale, that on the period between June 2000 to may 28, 2011 appellant represent herself to have the capacity to contract enlist and transport filipino workers for employment abroad, for a fee, recruit and promise employment as a chamber maid in australia, as a factory worker in south korea, as a waiter in australia to the following persons. Prosecution- averred that manalang promised to deploy tura to australia and paid manalang 80,000 pesos Manalang also informed maranon that she can work as a chambermaid in australia Manalang averred, that she was the owner of honte travel and tours which process application for passport, also owns a training school which offers training for hotel and restaurant, and both offices have permits Private complainants underwent training in her office, however she did not process their application forms or offer them employment abroad, she agreed to reimburse half of the placement fee supposedly paid by private respondent. ISSUE; WON MANALANG is Guilty of Illegal Recruitment Ruling: Yes, she was guilty of illegal recruiment Recruitment and placement- refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers, and includes referrals, contract services promising or advertising employment locally or abroad, whether for profit or not, provided that any person or entity which, in any manner, offers promises for a fee, employment to two or more persons shall be deemed engage in recruitment and placement. Illegal Recruitment- any recruitment activities including the prohibited practices enumerated under article 34, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable. **2 types of illegal recruitment** **Syndicated and large-scale** Illegal recruitment is deemed committed by a **syndicate If carried out by a group of three (3) or more persons conspiring** Illegal recruitment in large scale if committ**ed against 3 or more p**ersons individually or as a group **Both acts are economic sabotage** **Part II of RA 8042 defines and penalizes illegal recruitment for employment abroad, regardless of whether it was undertaken by a non-licensee or non-holder of authority by a licensee or holder of authority**. YES SHE IS GUILTY **First, she promised to deploy private complainant** **Second manalang was neither licensed nor authorized by POEA** **Thirdly, accused appelant defrauded at least 3 persons namely tura, maranon, and cawas** In sum all the elements of illegal recruitment in large scale committed. 2\. **Essential Elements of Recruitment** People v. Manungas 231 SCRA 1 PEOPLE VS MANUNGAS PAYMENT IS NOT NEEDED LICENSE AND AUTHORITY BOTH REQUIRED LICENSE- SA AGENCY TO OPERATE AUTHORITY- SA PERSON LANG AT DI LAHAT BINIBIGYAN FACTS: Fernando manungas went to barangay in pangasinan to recruit workers for employment abroad, wherein he was able to convinced complainants to apply as janitors in saudi arabia. Complainant went to the office of the accused and paid the accused for medical exam and other fees for processing their papers. However, complainant failed to leave for saudi arabia, they requested to verify if accused appellant is licensed to recruit workers abroad, unfortunatelt a certification issued by POEA that accused appellant is not a license holder to recruit. Hence they filed a case for estafa and illegal recruitment. Accused version is that he was the operations manager of the ZG recruitment and placement agency a duly license agency. But the job order for janitorial services is awarded to Express placement agency, thereafter he transferred the application of the complainants to the latter agency. Accused appellant maintained that he did not make false representation, he is just an employee of a licensed recruitment agency. ISSUE: WON Guilty of Illegal recruitment Ruling: in the instant case accused appellant told complainants to submit to him their picture, birth certh, NBI clearance and other necessary documents for the processing of their employment in saudi arabia. Thereafter, appellant collected, training fee and placement fee. There is illegal recruitment when one gives the impression of his ability to send a worker abroad and there is evidence that accused-appellant had represented to the complanants that he could send them abroad as janitors in saudi arabia, and because of his representation, complainants have their hand earned money in consideration of the same representation. **People v Lapis 391 SCRA 131** FACTS: Complainants are husband and wife residing in baguio city, selling fish and vegetables in baguio city until they closed their shop to attend the demands of the promised job for them in japan Jane amlaw approached them and assured that she knew an EX-POEA employee who had capacity to send them abroad. Amlaw recruited complainants and referred to Aida De leon who arranged a meeting to angel mateo who represented himself as having the capacity to send people abroad accompanied by various documents to convince them if his legitimate recruitment operations Complainant handed 15, 000 pesos to mateo as processing fee. Complainant likewise identified Victoria Lapis as the person introduced by mateo as his wife, Lapis told complainant that she was helping to speed up the processing if their papers to japan Accused-appellant denies the allegation they denied having received the amount. ISSUE; WON Guilty of Illegal Recruitment Ruling : under article 13b recruitment and placement refers to any act of canvassing, enlisting, contracting, transporting, utilizing hiring or procuring workers and includes referrals, contract service, promising or advertising for employment, locally or abroad whether for profit or not. In the simplest terms illegal recruitment is committed by persons who, without authority from the government, gives impression that tthey have the power to send workers abroad for employment purposes. **People v. Goce 317 Phil 897** FACTS: Complainants were introduced to lorenzo alvarez and nelly agustin wherein they accompanied the complainants to placement agency at nakpil where they saw agustin and spouses GOCE owners of the agency. They submitted their bio-data and paid for placement fee and gave an assurance that they could leave abroad. But salado failed to leave for the promise overseas employment, thus they decided to go to POEA and to verfiy the real status of Clover placement agency, they discovered that said agency is was not duly liscenced to recruit job applicants. Salado demand for the return the money he paid, but agustin could give him 500 pesos Rogelio Salado and others filed a case for illegal recruitment by syndicataed and in large scale against spouse Goce and other accused Appellant agustin, raises the following arguments, 1. Her act of introducing complainants to the Goce couple does not fall with the meaning of illegal reccruitment and placement Allegedly out of the goodness if her heart, she somplied with their requestm such an act, appellant argues, does not fall within the meaning of referral under the labor code to make her liable for illegal recruitment. ISSUE: WON guilty of illegal recuitment Ruling: Yes, Referral- is the act of passing along or forwarding of an employment after an initial interview of a selected applicant for employment to a selected employer, placement officer or bureau An employee who actually makes referrals to the agency which she is apart is engage in recruitment activity. **3. Who can engage in recruitment and placement of workers** **Article 16 of the Labor Code (PRIVATE RECRUITMENT)** **1.Person or entity to engage in the recruitment and placement of workers.** **a.** Public employment office. b\. (Repealed) c\. POEA d\. Private Recruitment Offices e\. Private Employment Offices f\. Shipping or manning agents or representatives and g\. Such other persons or entities as may be authorized by the secretary. **Article 18- Ban on Direct Hiring** **General Rule** : No employer may hire a filipino worker for overseas employment except through the POEA and entities authorized by the secretary of labor **Except:** 1. Members of Diplomatic corps 2. International Organization 3. Such other employers as may be allowed by the secretary of labor **Article 25 of the Labor Code** **Private sector participation in the recruitment and placement of workers** 1. **Who may participate?** a. Private employment agencies b. Private recruitment entities c. Shipping or manning agents or representatives. d. Such other persons or entities as may be authorized by the secretary. **Article 26- Travel agencies prohibited to recruit** 1. **Disqualifications to engage in recruitment and placement of landbased and seafarers overseas employment** 1. **Travel agencies and sales agencies of airline companies** 2. **Officers or members of the board of any corporation or partners in a partnership engage in the business of a travel agency** 3. **Corporations and partnership where any of its officers members of the board or partners is also an officer member of the board or partner of a corporation or partnership engage in the business of a travel agency.** 4. **The applicant is presently an incorporation, director or key officer of at least five licensed manning agencies** 5. **Individuals, partners, officers or directors of an insurance company who make, propose or provide an insurance contract under the compulsory insurance coverage for agency-hired overseas filipino workers** 6. **Sole proprietors, partners or officers and members of the board with derogatory records.** 7. **Any official or employee of DOLE, POEA, OWWA, DFA, DOJ, DOH, BI, IC, NLRC, TESDA, CFO, NBI, PNP, CAAP.** **DEROGATORY RECORD** **Refers to the resolution on the finding of probable cause by the department of justice for illegal recruitment or for other related crimes or offenses, or a licensed recruitment agency whose liscensed had been cancelled or revoked by the POEA.** **EFFECT OF DEROGATORY RECORD** - **LICENSED SHALL BE SUSPENDED** **DISQUALIFICATION TO ENGAGE IN RECRUITMENT AND PLACEMENT FOR LOCAL EMPLOYEMENT** 1. Those who are convicted of illegal recruitment, trafficking in persons, child labor, or other crimes involving moral turpitude. 2. Those against whom probable cause or prima facie finding of guilt for illegal recruitment or other related cases exist particularly to owners or directors of agencies who have committed illegal recruitment 3. those agencies whose license have been previously revoked or cancelled by the department 4. cooperatives whether registered or not 5. law enforcers and any official and employee of the DOLE 6. Sole proprietors, partnership or corporation license to engage in private recruitment and placement for local employment are prohibited from engaging in job contracting or sub contracting activities. 7. Sole proprietors of duly licensed agencies are prohibited from securing another license to engage in recruitment and placement **Article 27 -- Citizenship Requirement** At least **75% of the authorized and voting capital stock of which is owned and controlled by filipino.** Shall be permitted to participate in recruitment and placement or workers locally or overseas. **Article 28- CAPITALIZATION** 1. **QUALIFICATION FOR OVERSEAS RECRUITMENT AND PLACEMENT** 1. **Any filipino citizen** 2. **Atleast 75%** 3. **Shall have minimum capitalization of 5,000,000.00 pesos** 2. **QUALIFICATION FOR LOCAL RECRUITMENT AND PLACEMENT** 1. **75% OF THE AUTHORIZED CAPITAL STOCK IS OWNED AND CONTROLLED BY FILIPINO** 2. **Minimum net worth of 1,000,000.00** 3. **Not otherwise disqualified by law or other government rules and regulations to engage in business of recruitment and placement.** - Shall be valid a NON-EXTENDABLE Period of **TWO 2 years from the date of issuance** **APPLICATION FOR [UPGRADING PROVISIONAL LICENSE] TO A REGULAR LICENSE** **- upon [deployment of one hundred (100) worker] to its new principal.** And upon submission of the following 1\. Quality management system 2\. escrow deposit of 1,000,00.00 3\. certificate of non pending case 4\. Certificate of attendance to the continuing agency education program (CAEP) 5\. Latest audited financial statement. **- VALIDITY OF A REGULAR LICENSE** **- 4 YEARS FROM THE DATE OF ISSUANCE** **Upgrading of provisional license to regular license** **- 3 months before the expirations of provisional license** **-[LICENSE FOR LOCAL RECRUITMENT AND PLACEMENT]** **[-]3 YEARS FROM THE DATE OF ISSUANCE UNLESS SOONER REVOKED OR CANCELLED** **RENEWAL OF LICENSE\ -Not earlier than 60 days but not later than 30 days before its expiration** **[AUTHORITY]** 1. **AUTHORITY TO RECRUIT** **-** may be issued together with the license by the concerned Regional/Field Office. **SUCH AUTHORITY TO RECRUIT SHALL BE VALID NATIONWIDE** 2. **VALIDITY OF THE AUTHORITY** **- the authority to recruit is CO-TERMINUS with validity of the license unless such license or authority is revoked or cancelled for violation of the labor code.** **3. RENEWAL OF AUTHORITY TO RECRUIT** **-application for renewal of authority to recruit shall be filed not earlier than sixty days but not later than five days before the date of its expiration** 3. **Illegal Recruitment** **-**Any recruitment activities, including the prohibited practices enumerated under article 34 of this code, to be undertaken by non-lincesees or non-holders of authority, shall be deemed illegal and punishable under article 39 of this code. A. **Types of Illegal Recruitment** 1. **Illegal recruitment by a syndicate (THE NUMBER OF VICTIMS IS NOT MATERIAL)** **Elements:** a. **No valid license or authority** b. **Engage in this activity of recruitment and placement by actually recruiting, deploying and transporting** c. **Committed by three or more persons conspiring and confederating with one another** 2. **Illegal recruitment in a large scale (THE NUMBER OF VICTIMS IS MATERIAL)** a. **No valid license or authority** b. **Engage in recruitment and placement activities** c. **Committed against three (3) or more persons, individually or as a group** **Common Elements!** 1. **No valid license or authority required by la**w 2. **Engage in recruitment and placement of workers and undertakes any activities within the meaning of recruitment and placement. Or any prohibited practices enumerated under Article 34.** **RA 8042 as Amended by RA 10022** **Article 34 of the Labor Code** **Art. 34. Prohibited practices**. It shall be unlawful for any individual, entity, licensee, or holder of authority: a. 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; b. To furnish or publish any false notice or information or document in relation to recruitment or employment; 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 this Code. d. 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; e. 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; f. 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; g. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives; h. 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. i. 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; j. 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 k. 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. Ritualo v People G.R. No. 233089, June 29, 2020 B. **Prohibited acts** C. **Qualified Illegal Recruitment** People v Coching G.R. No. 232245. March 02, 2022 People v David G.R. No. 233089, June 29, 2020 IV People v Panis GR L-58674 July 11, 1990 People v Dela Piedra GR 121777, January 24, 2001 Art 14 Labor Code Art 15 Labor Code Marsaman v NLRC GR 127195 August 25, 1999 Serrano v Gallant GR 167614 Mar 24, 2009 Yap v Thenamaris GR 179532 May 30, 2011 Sameer overseas placement v Cabiles GR 170139 Aug 5,2014 **Article 40- Employment Permits of Non-resident aliens** **(Lumabas sa bar)** **Coverage-** Any Alien seeking admission to the Philippine employment purposes and any domestic or foreign employer who desires to engage an alien employment in the Philippines shall obtain an employment permit from the department of labor and employment **Exemption from coverage:** 1. **Diplomatic service** 2. **Staff of International organization** 3. **Owners and representative of foreign principals** 4. **Foreign nationals come to the Philippines to teach, present and conduct research** 5. **Permanent resident nationals and probationary or temporary resident visa holders** 6. **Refugees** 7. **All foreign nationals granted exemption by law** **Apprentices art 57 to 72** **Apprenticeship** - Means **any training on the job supplemented by related theoretical instruction** involving apprenticeable occupation and trades as may be approved by the secretary of labor and employment. **Apprentice** - Is a **worker who is covered by a written apprenticeship agreement** with an employer. **Apprenticeship agreement** - Is **a written employment contract** wherein the employer binds himself to train the apprentice and the latter in turn agrees to work for the employer. - **Apprenticeable Occupation** - Is an occupation officially endorsed by a tripartite body and **approved for apprenticeship by the authority (TESDA), requires more than 3 months of practical training on the job supplemented by related theoretical instruction.** **Highly technical industries** **-** means trade, business, enterprise. Industry or other activity which is **engage in the application of advanced technology** **QUALIFICATION OF APPRENTICE** 1. **At least 15 years of age** 2. **Physically fit for the occupation** 3. **Possess vocational aptitude and capacity fro the particular occupation establish through appropriate test** 4. **Possess the ability to comprehend and follow oral and written instruction.** **Number of Apprentice to be taken in the Company** - Maximum of **20% of its total workforce** **EFFECT OF FAILURE TO REGISTER/APPROVED BY TESDA THE APPRENTICESHIP PROGRAM** 1. **century canning v court of appeals GR 152894, aug 17, 2007** In this case, the apprenticeship agreement was entered into between the parties before petitioner filed its apprenticeship program with the TESDA for approval. Petitioner and Palad executed the apprenticeship agreement on 17 July 1997 wherein it was stated that the training would start on 17 July 1997 and would end approximately in December 1997. On 25 July 1997, petitioner submitted for approval its apprenticeship program, which the TESDA subsequently approved on 26 September 1997. Clearly, the apprenticeship agreement was enforced even before the TESDA approved petitioner's apprenticeship program. T**hus, the apprenticeship agreement is void because it lacked prior approval from the TESDA. The TESDA's approval of the employer's apprenticeship program is required before the employer is allowed to hire apprentices. Prior approval from the TESDA is necessary to ensure that only employers in the highly technical industries may employ apprentices and only in apprentice-able occupations.** Thus, under RA 7796, employers can only hire apprentices for apprenticeable occupations which must be officially endorsed by a tripartite body and approved for apprenticeship by the TESDA. This is to ensure the protection of apprentices and to obviate possible abuses by prospective employers who may want to take advantage of the lower wage rates for apprentices and circumvent the right of the employees to be secure in their employment.LABOR CASES Where a worker is not considered an apprentice because the apprenticeship agreement was enforced before the TESDA's approval of the apprenticeship program, the worker is deemed a regular employee 2. **Nitto enterprises c NLRC GR 114337** Apprenticeship Agreements; Prior approval by the Department of Labor and Employment of the proposed apprenticeship program is a condition sine qua non before an apprenticeship agreement can be validly entered into **-** it is mandated that apprenticeship agreements entered into by the employer and apprentice shall be entered only in accordance with the apprenticeship program duly approved by the minister of labor and employement. **PRIOR APPROVAL BY THE DEPARTMENT OF LABOR AND EMPLOYEMENT OF THE PROPOSED APPRENTICESHIP PROGRAM IS THEREFORE A CONDITION SINE QUA NON (CONDITION PRECEDENT) BEFORE AN APPRENTICESHIP AGREEMENT CAN BE VALIDLY ENTERED INTO.** **In effect,** without prior approval of DOLE (TESDA NOW), **The employee was not hired as apprentice but a regular employee.** **PERIOD OF APPRENTICESHIP** **-NOT LESS THAN 4 MONTHS AND NOT MORE THAN 6 MONTHS** A. **400 hours or two months for trades or occupations normally require a year or more for proficiency** B. **200 hours or 1 month for trades or occupation which require more than three months but less than one year of proficiency** **BENEFITS OF APPRENTICE** - **75% of the prevailing minimum wage and other benefits including overtime pay.** **EXEMPTION- ARTICLE 72 (APPRENTICES WITHOUT COMPENSATION)** - **Those whose training on the job is required by the school curriculum as a PREREQUISITE FOR GRADUATION or for taking a government board examination are classified as apprenticeship without compensation** - **An apprentice can work overtime provided there are no regular workers to do the job. And the time spent on overtime work is duly accredited to his training hours** **HOURS OF WORK** - **Shall not exceed number of hours of work prescribed by law (8 Hours)** **Article 62- SIGNING OF APPRENTICESHIP AGREEMENT** **Apprenticeship agreement** - **No apprenticeship training will commence until apprenticeship agreement has been forged between an enterprise and an apprentice** **PARTIES TO AGREEMENT** 1. **EMPLOYER OR HIS DULY AUTHORIZED REPRESENTATIVE** 2. **APPRENTICE** 3. **IF APPRENTICE IS MINOR, SHALL BE SIGNED IN HIS BEHALF BY HIS PARENT OR GUARDIAN, OR BY AN AUTHORIZED REPRESENTATIVE OF DOLE** **VENUE OF ON-THE-JOB-TRAINING** 1. Premises of the employer or firm concerned 2. In the premised of one or several firms designated for the purpose by the organizer of the program 3. In DOLE training center or other public training institution **Learners (art 73 to 77)** **Learners** - Persons hired as Trainess in **SEMI-SKILLED and other industrial occupations** which are non-apprenticeable by which may be learned through practical training on the job in a relative short period of time **which shall not exceed three months whether or not such practical training is supplemented by theoretical instruction** **APPRENTICESHIP VS LEARNERSHIP** +-----------------------+-----------------------+-----------------------+ | **DISTINCTION** | **APPRENTICESHIP** | **LEARNERSHIP** | +=======================+=======================+=======================+ | As to agreement | Apprenticeship | Learnership agreement | | | agreement | | +-----------------------+-----------------------+-----------------------+ | as to period of | not be less than 4 | not more than 3 | | agreement | months but not more | months | | | than 6 months | | +-----------------------+-----------------------+-----------------------+ | **As to Obligation to | **Not obliged to | **Obliged to hire | | hire** | hire** | after learnership | | | | period** | +-----------------------+-----------------------+-----------------------+ | As to pre-termination | There is no | Work during first 2 | | of the agreement | employment by | months shall be | | | operation of law | deemed regular | | | | employees if training | | | | is terminated without | | | | faulty of leaners | +-----------------------+-----------------------+-----------------------+ | As to person hired | Known as apprentice | Known as learners | +-----------------------+-----------------------+-----------------------+ | as to supplement on | With compulsory | May or may not be | | theoretical | related theoretical | supplemented by | | instruction | instruction | theoretical | | | | instruction | +-----------------------+-----------------------+-----------------------+ | As to reasons for | Did not provide any | 1. When no | | hiring | reason where | experience | | | apprentice may be | workers are | | | hired | available | | | | | | | | 2. To prevent | | | | curtailment of | | | | employment | | | | opportunities | | | | | | | | 3. Employment does | | | | not create unfair | | | | competition in | | | | terms of labor | | | | costs. | +-----------------------+-----------------------+-----------------------+ | As to qualification | 1. 15 years of age | Did not provide such | | | | qualification. | | | 2. Possess | | | | vocational | | | | aptitude | | | | | | | | 3. Physically fit | | | | | | | | 4. Possess the | | | | ability to | | | | comprehend the | | | | instruction | | | | whether verbal or | | | | written | | +-----------------------+-----------------------+-----------------------+ **SIMILARITIES OF APPRENTICESHIP AND LEARNERSHIP** **SIMILARITIES** **APPRENTICESHIP/LEARNERSHIP** -------------------------------------------------------------- ------------------------------------------------------------------------------- As to approval of agreement/program Required prior approval of TESDA As to number of Apprenticeship/learners Maximum of 20% of its total regular workforce As to practical training on the job Is on practical training on the job As to the grounds for revocation of registration certificate Not taking apprentices or learners for TWO CONSECUTIVE YEARS SHALL BE REVOKED As to wage paid 75% of the prevailing miminum wage and other benefits including overtime pay As to implementation of apprenticeship/learnership program In accordance with the tesda-approved competency based format As to Competency assessment Shall be subject to competency assessment **EMPLOYMENT OF LEARNERS IN PIECE OR INCENTIVE-RATE JOBS** - **100% of THE APPLICABLE MINIMUM WAGE SHOULD BE PAID** **Handicapped workers Arg 78 to 81 (HINDI NA DISCUSS)** 1. **Magna carta for persons with disabilities RA7277 as amended** **Art. 82 to 90 Hours of work (8 HOURS A DAY/ 6 DAYS A WEEK)** A. **Coverage and exclusion** **Coverage -** it shall apply to all employees in all establishment and undertakings whether for profit or not **Exclusion** A. Government employee B. Managerial employees C. Field Personnel D. Members of the family of the employer who are dependent on him for support E. Domestic helpers F. Persons in the personal service of another G. Workers who are paid by results (Pakyaw) **Managerial Employee** 1. Primary duty consist of the management of the establishment. 2. Direct the work or two or more employee 3. They have the authority to hire or fire employees of lower rank or their suggestion and reccommendations as to hiring and firing and as to the promotion or any other change of status of other employees are given particular weight. **SUPERVISOR CLASSIFIED AS OFFICERS OR MEMBERS OF MANAGERIAL STAFF** **(IF THEY PERFORMED MANAGERIAL FUNCTION)** 1. Their primary duty consist of the performance of work directly related to management policies of their employer 2. They customarily and regularly exercise discretion and independent judgement 3. The regularly and directly assist thee managerial employee whose primary duty consist of the management of a department of the establishment 4. They execute, under general supervision work along specialized or technical lines requiring special training 5. They execute, under general supervision, special assignments and task 6. They do not devote more than 20% of their hours worked in a work-week to activities **CATEGORIES OF EMPLOYEES PAID BY RESULTS** 1. Those whose time and performance are **SUPERVISED by the employer (Piece Rate worker)** 2. **Those whose time and performance are UNSUPERVISED (Pakyaw)** - To determined entitlement to holiday pay the test is whether the employees' time and performance are supervised by the employer **CONCEPT OF FIELD PERSONNEL** - Field personnel shall refer to non-agricultural employees who regularly performed their duties **[AWAY FROM THE PRINCIPAL PLACE OF BUSINESS]** or branch office of the employer whose actual hours of work in **[the field CANNOT BE DETERMINED WITH REASONABLE CERTAINTY.]** - **GENERAL RULE: Field personnel** are those whose performance of their job/service is not supervised by the employer or his representative, the workplace is being **away from the principal office and whose hours and days of work cannot be determined with reasonable certainty[, *if required to be at specific places at specific times, employees including drivers cannot be said to be field personnel diespite the fact that they are performing away from principal office of the employment*]** **Article 83 -- hours of work** **Normal hours of work in a day** \- **Shall not exceed eight (8) Hours** **Legend Hotel V Realuyo GR No. 153511, July 18, 2012** - In providing that the normal hours of work of any employee shall not exceed eight hours a day, Article 83 of the Labor Code **only set a Maximum of numbers of hours as "Normal hours of work" but did not prohibit work less than eight hours.** **EXCEPTIONS TO NORMAL WORKING HOURS** B. **Flexible working hours (Department Advisory No. 2 S. 2009)** **-** Refer to alternative arrangements or schedules other than the traditional or standard work hours C. **Compressed work week** \- refers to one where the normal workweek is reduce to less than six (6) days but the total number of work-hours of 48 hours per week shall remail**[. The normal workday is increased to more than eight hours but not to exceed twelve hours without corresponding overtime premium.]** **Linton Commercial Co. v Hellera GR No. 163147, Oct. 10, 2007** **-**a close examination of petitioners' financial reports for 1997-1998 shows that, while the company suffered a loss of P3,645,422.00 in 1997, it retained a considerable amount of earnings and operating income, clearly them, while linton suffered from losses for that year, there remained enough earnings to sufficiently sustain its operations. In business, sustained operations in the black is the ideal but beaing in the red is a cruel reality. However a year of financial losses would not warrant the immolation of the welfare of the employees, which in this case was done through a reduced workweek that resulted in an unsettling dimunition of thee periodic pay for a protected period. **GUIDELINES ON COMPRESSED WORK WEEK (CWW)** 1. Voluntary Agreement of Majority of the Covered Employees , this agreement may be expressed through Collective Bargaining Agreement (CBA) 2. If firms using substance, chemicals and processes or operating under condition. Which may pose hazards to the employees health and safety, there must be a certification from an accredited health and safety organization or practitioner 3. The employer shall notify DOLE (For inspection), through the regional office having jurisdiction over the workplace. D. **Health personnel** **-**include resident physicians, nurses, nutritionists, dietitians, pharmacist, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. **Hospital or clinics** - Mean a place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment and care of individual suffering from illness, disease injury or deformity or in need of obstrical or other medical and nursing care. **Coverage** a. **All hospitals and clinics with a bed capacity of less than one hundred (100) which are situated in cities and municipalities with a population of 1 million or more** b. **all hospitals and clinics with a bed capacity of at least one hundred (100),** irrespective of the size of the population of the city or municipality where they situated. **NORMAL WORK HOURS OF HEALTH PERSONNEL** **GR: - 8 hours a day, for 5 days a week** **Exception: exigencies of the service require that such personnel work for Six days or 48 hours, in which case shall be entitled to an additional compensation of 30% of their regular wage for work on the sixth day.** **E.RA 7305 -- Magna carta of Public health Workers** **-Government health workers are covered by RA 7305** **KMG c. COA GR 150769, Aug, 31, 2004** - the inescapable conclusion is that a mere incidental or slight connection between services is NOT SUFFICIENT to make a government employee a public health worker within the meaning of R.A 7305. **The employee must be principally engaged in the delivery of health or health related services to be deemed a public health worker.** - **[To be included within the coverage of R.A 7305, a government employee must be principally tasked to render health or health related services]***, **otherwise put an employee performing functions not directly connected with the delivery of health services is not a public health worker within the contemplation of the law*** Cases: 1\. Bonpack v. NMB-Super G.R. No. 230041. December 05, 2022 2\. Coca Cola Bottlers v ICCPELU G.R. No. 195297, December 05, 2018 3\. Labor Congress of the Phil. V. NLRC GR 123938, May 21, 1998 4\. Caltex Regular Employees v.Caltex G.R. No. 111359 August 15, 1995 **ARTICLE 84 -- HOURS WORKED** **Compensable Hours Worked** a. **All time during which an employee is required to be on duty or at a prescribed workplace; and** b. **All time during which an employee is suffered or permitted to work.** **RULES ON WAITING TIME** A. If waiting is an **integral** part of his work or B. The employee is **required or engaged by the employer to wait** **Waiting to be engage VS Engage while waiting** **Waiting to be engage- not compensable** **Engage while waiting- Does have the right to demand compensation** **ON CALL** **-Cannot use time effectively and gainfully for his own purpose, Shall be considered as working while on call.** **Arica V. NLRC GR 78210, Feb. 28, 1989** **(30 minute waiting time)** Ruling: the 30 minute assembly is a deeply rooted routinary practice of the employees and the proceedings attendant thereto are not infected with the complexities as to deprive the workers the time to attend the other personal pursuits. They are not new employees as to require the company to deliver long briefings regarding their respective work assignments, their houses are situated right on the area where the farm are located such that after roll call, which does not necessarily require the personal presence, **they can go back to their houses to attend some chores. In short they are not subject to absolute control of the company during this period.** **Article 85- Meal Periods** **Meal and Rest period** **-**Not less than 1 hour (Not Compensable, not include in the eight-hour work period) **Coffee Breaks** **-**5 to 20 minutes (Considered as compensable working time) **Article 86 -- Night Shift Differential** -Additional compensation of **10% of an employee's regular wage (on that day) for each hour of work** performed **between 10 o'clock in the evening to 6 o'clock in the morning.** **Excluded from NSD** 1. Government employee 2. Establishment regularly **employing NOT MORE THAN 5 WORKERS** 3. **Domestic helpers** 4. **Managerial employees** 5. **Field personnel and other employees whose time and performance is unsupervised by the employer and those whose engage on task or contract basis, purely commission basis.** **Example:** **Ordinary Day, Night Shift = 1 x 1.1 = 1.1 or 110%** **(P600/8x110%= 75x110%= P82x No. of Hours work)** **ARTICLE 87- Overtime work** **-**additional compensation for work performed beyond 8 hours a day **Rule: work perform beyond eight hours on** a. **Regular day -- 25%** b. **Holiday or Rest day -- 30%** **Excluded from OT** a. **Government Employees** b. **Managerial employees** c. **Officers or members of a managerial staff** d. **Domestic Servants** e. **Workers who are paid by results** **COMPUTATION: MEMORIZE!** **SPECIAL HOLIDAY OR REST DAY= 30%** **SPECIAL HOLIDAY AND REST DAY= 50%** **REGULAR HOLIDAY = 100% IF UNWORKED, 200% IF WORKED** **ARTICLE 89- Emergency Overtime worked** **GR: CANNOT BE COMPEL TO RENDER OVERTIME** **Exception:** a. **When the country is at war or when any other national or local emergency** b. **When necessary to prevent loss of life or property or in case of imminent danger to public safety, caused by serious accidents, fire, flood, typhoon, earthquake epidemic or other disaster or calamity** c. **When there is urgent work to be performed in machine installations or equipment. To avoid serious loss or damage to employer.** d. **To prevent loss or damage to perishable goods** e. **Continuation of the work started before eight hours is necessary to prevent serious obstruction or prejudice to the operations of the employer.** **Art. 91-93 Weekly Rest Period** REST DAY**- not less than 24 Consecutive hours after every 6 consecutive normal work day.** Preference of employee- on religious grounds, it should be in writing 7 days before the initial rest day so preferred. However, if it will result in serious prejudice or obstruction to the operation of the undertaking and the employer. The employer may so schedule the weekly rest day of his choice for at least 2 days in a month. A. **Coverage and exclusion** -apply to all employers whether operation for profit or not including public utilities operated by private person. **Exclusion** a. Government employee b. Managerial employees c. Officers or members of a managerial staff d. Domestic servants and persons in the personal service of another e. Workers paid by results, including those are paid on piece-work or task basis f. Non-agricultural field personnel B. **Work on Rest day** **General Rule:** No employee shall be required against his will to work on his scheduled rest day. **Exceptions:** 1. **In case of actual or impending emergencies, national disaster** 2. **Urgent work to be performed in machinery, equipment installation, to avoid serious loss which the employer would otherwise suffer.** 3. **In the event of abnormal pressure of work due to special circumstances** 4. **To prevent lost or damage to perishable goods** 5. **Where the nature of work requires continuous operations and the stoppage of work may result in irreparable injury or loss to the employer** 6. **Under other circumstances analogous or similar to the foregoing as determined by sec. labor and employment** 7. **Then the work is necessary to avail of favorable weather or environmental conditions.** C. **Compensation -- additional compensation on regular wage if work on** **Rest day- 30%** **Sunday and holidays -30%** **Special holiday- 30%** **Special holiday falls on rest day- 50%** **Art 94-96 Holidays, Service Incentive Leaves and Service Charges** A. **Definition** \- refers to the payment of the regular daily wage for any **UNWORKED regular holiday** **A. Regular Holiday (12)- exclusive** **1. New year's day** **2. Christmas day** **3. Maundy Thursday** **4. Good Friday** **5. Eid'l Fitr** **6 Eid'l adha -- ON Muslim Holiday no distinction as to muslim or non-muslim.** **7 Araw ng kagitingan** **8 Labor Day** **9. Rizal day** **10 Bonifacio day** **11. National Heroes day** **12. independence day** B. **National special holida (Not Exlcusive list)** **Ninoy Aquino day** **All saints day** **Last day of the year** **Feast of immaculate concepcion of mary** C. **Coverage** - Cover all employees a. **government employee** b. **Those retail and service establishments regularly employing less than 10 workers** c. Domestic helpers d. Managerial employees e. Field personnel, unsupervised. D. **Compensation** **UNWORKED -- 100%** **WORKED -- 200% DOUBLE PAY** **OVERTIME FOR HOLIDAY WORK- 30%** **HOLIDAY AND REST DAY- 260%** E. **Other leave benefits** **Article 95 (SIL)** **-an employee who rendered one year of service is entitled to a yearly SIL of 5 days with pay** **-**one year means not less than 12 months whether continuous or broken. **Exclusions:** a. Those of the government and any of its political subdivisions including GOCC b. Domestic helpers c. Managerial employees d. Field personnel and other employees whose performance is unsupervised by the employer e. **Those who are already enjoying the benefit herein provided** f. **Those enjoying vacation leave with pay at least five days** g. **Those employed in establishment regularly employing less than ten employees** **Treatment** **-If not used at the end of the year, commutable to its money equivalent. Only 3 can be converted into cash.** **OTHER LEAVES PROVIDED BY LAW** 1. **PATERNITY LEAVE** - **7 DAYS compensable** - **Conditions** a. **Employee at the time** of delivery of his child b. He is Cohabiting **(Lawful Cohabiting) with his spouse at the time she gives birth or suffers a miscarriage** c. **He applied for paternity leave in accordance with sec 4 hereof (Sec 4. Applied within a reasonable period of time from the expected date of delivery by the pregnant spouse)** d. **His wife has given birth or suffered miscarriage** 2. **EXPANDED MATERNITY LEAVE LAW** **COVERAGE** **-ALL COVERED FEMALES REGARDLESS OF CIVIL STATUS, EMPLOYMENT STATUS, AND THE LEGIMITACY OF HER CHILD.** **BENEFITS** **105 DAYS WITH PAY** **60 DAYS WITH PAY FOR MISCARRIAGE** **15 DAYS- ADDITIONAL IF QUALIFIES AS A SOLO PARENT** **30 DAYS- OPTION TO EXTEND WITHOUT PAY** **FREQUENCY** 1. **REGARLESS (UNLI)** 2. **SSS (UNTIL 4 COMPENSABLE)** **SOLO PARENT** **Categories:** a. **birth as a consequence of rape** b. **death of the spouse** c. **detention of spouse for at least 3 months** d. **physical or mental incapacity of the spouse** e. **legal separation or de facto separation for at least 6 months** f. **declaration of nullity** g. **abandonment of the spouse for at least six months** **LEAVE FOR VICTIMS OF VAWC** **10 DAYS PAID LEAVE** **ARTICLE 96 -- SERVICE CHARGE** **Applies to all establishment collecting service charges such as hotels restaurants and other similar establishments.** **Coverage.** **-**All employees except managerial employee **Distribution** **All service charges collected (100%)** shall be distributed completely and equally among the covered employees. **Frequency** **Twice a month at intervals not exceeding 16 days** F. **13th month pay** \- Monetary benefit equivalent to the monthly basic compensation received by an employee, computed pro rata according to the number of months within a year that the employee has rendered service to the employer. **Coverage** **-all rank and file employees** **Computation** **Basic monthly salary for the whole year divided by 12 months = 1/12** **BASIC SALARY** **-shall include all renumerations or earning paid by an employer to an employee for services rendered, but does not include allowance and monetary benefits which are not considered or integrated as part of the regular or basic salary.** **(Ex: Vacation leave, sick leabe, overtime, premium, night differential and holiday pay.)** **Payment** **-Not later than December 24 of each year** F. Republic Act 11360 Cases: **Nate Casket Maker v. Arango, GR 192282, October 5, 2016** Whether pakyaw workers are entitled to OT, Holiday pay, SIL and 13^th^ month? In determining whether workers engaged on pakyaw or task basis is entitle to holiday and SIL pay, **[The presence (or absence) of employer supervision as regards the worker;s time and performance is the key:]** if the worker **is simply engaged on pakyaw or tasks basis then the general rule is that he is entitled to a holiday pay** unless exempted from the exceptions specifically provided under article 94 (holiday pay) and article 95 (SIL pay) of the labor code. **[However, if the worker engaged on pakyaw or task basis also falls within the meaning of field personnel under the law then he is not entitled to these monetary benefits]** **Nippon Paint Phil. V. NIPPEA G.R. No. 229396, June 30, 2021** **Facts: based on the CBA of Petitioner and respondent, petitioner grants an amount equivalent to 200% of their regular daily rate during a holiday even if no work was rendered and 300% if they were required to work on a regular holiday. Effective 2007 to 2011.** **In 2012 all the employees were not given the holiday pay corresponding to Eidul adha.** **Respondent argue that giving of 200% if unworked during holiday and 300% if worked is company practice and ripened into a company practice, which could no longer recover because it is tantamount to dimunition of benefits.** **Petitioner Averred that overpayments made in 2010 and 2011 were only glitches and errors in its payroll and eidul adha was not listed in the 2007 CBA as a regular holiday.** **The VA ruled in favor of petitioner that no established grant that ripen into benefit.** **But, the CA set aside the Decision of VA held that as company practice petitioner grant of an additional holiday pay for eidul adha to its employees in addition to what was mandated by law. And the employees of petitioner have a vested right over the existing benefit which cannot be reduced, diminished, discontinued or eliminated by the company.** **Hence and appeal.** **Issue: WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT \[RESPONDENT\] AND ITS MEMBERS ARE ENTITLED TO AN ADDITIONAL 100% PAY IN 2012 AND 2013 FOR THE \[EIDUL ADHA\] HOLIDAY?** **Ruling** **No, As a rule, employees have a vested right over existing benefits voluntarily granted to them by their employer.34 Any benefit and supplement being enjoyed by the employees cannot be reduced, diminished, discontinued, or eliminated by the employer.35 The principle of non-diminution of benefits under Article 100 36 of the Labor Code is actually founded on the constitutional mandate to protect the rights of workers, promote their welfare, and afford them full protection. In turn, Article 4 of the Labor Code states that \"\[a\]ll doubts in the implementation and interpretation of this Code, including its implementing rules and regulations, shall be rendered in favor of labor.** **There is diminution of benefits \"when the following requisites are present:** **(1) the grant or benefit is founded on a policy or has ripened into a practice over a long period of time;** **(2) the practice is consistent and deliberate;** **(3) the practice is not due to error in the construction or application of a doubtful or difficult question of law; and** **(4) the diminution or discontinuance is done unilaterally by the employee.** **Asian Transmission Corp v. CA G.R. NO. 144664 - March 15, 2004** **Facts:** **DOLE issued an Explanatory bulletin wherein It clarified that employees are entitle to 200% of their basic wage on April 9, 1993, whether unworked, which apart from being a good Friday is also araw ng kagitingan both legal holiday.** **Despite the explanatory bulletin Asian transmission opted to pay its daily paid employees 100% of their basic pay.** **In deciding in favor of the Bisig ng Asian Transmission Labor Union (BATLU), the Voluntary Arbitrator held that Article 94 of the Labor Code provides for holiday pay for every regular holiday, the computation of which is determined by a legal formula which is not changed by the fact that there are two holidays falling on one day, LABOR CASES like on April 9, 1998 when it was Araw ng Kagitingan and at the same time was Maundy Thursday; and that that the law, as amended, enumerates ten regular holidays for every year should not be interpreted as authorizing a reduction to nine the number of paid regular holidays "just because April 9 (Araw ng Kagitingan) in certain years, like 1993 and 1998, is also Holy Friday or Maundy Thursday..** **The Court of Appeals further held that "in the absence of an explicit provision in law which provides for \[a\] reduction of holiday pay if two holidays happen to fall on the same day, any doubt in the interpretation and implementation of the Labor Code provisions on holiday pay must be resolved in favor of labor** **Issue:** **Ruling: Holiday pay is a legislated benefit enacted as part of the Constitutional imperative that the State shall afford protection to labor.7 Its purpose is not merely "to prevent diminution of the monthly income of the workers on account of work interruptions. In other words, although the worker is forced to take a rest, he earns what he should earn, that is, his holiday pay."8 It is also intended to enable the worker to participate in the national celebrations held during the days identified as with great historical and cultural significance** **As reflected above, Art. 94 of the Labor Code, as amended, affords a worker the enjoyment of ten paid regular holidays.** **The provision is mandatory, regardless of whether an employee is paid on a monthly or daily basis. Unlike a bonus, which is a management prerogative, holiday pay is a statutory benefit demandable under the law. Since a worker is entitled to the enjoyment of ten paid regular holidays, the fact that two holidays fall on the same date should not operate to reduce to nine the ten holiday pay benefits a worker is entitled to receive. It is elementary, under the rules of statutory construction, that when the language of the law is clear and unequivocal, the law must be taken to mean exactly what it says.** **In the case at bar, there is nothing in the law which provides or indicates that the entitlement to ten days of holiday pay shall be reduced to nine when two holidays fall on the same day.** **JPL Marketing v. CA GR No. 151966 July 8, 2005** **(13^th^ Month and service Incentive Leave)** **Facts:** **Respondents Noel Gonzales were employed by JPL as merchandisers, one day JPL notified respondents that CMC one of their client would stop its direct merchandising activity, and they were advised to wait for further notice for their transferred to other clients, however private respondents filed before the Regional branch of NLRC a complaint for illegal dismissal, praying for Separation pay 13^th^ month pay, Service incentive leave pay.** **But the labor arbiter dismissed the complaints for lack of merit the claims for 13^th^ month and SIL was also denied.** **Private respondents appeal to NLRC, the NLRC agreed with the labor arbiter's finding that they were not illegally dismisse, however the NLRC orderd the payment of Service incentive leave and 13^th^ pay.** **Aggrieved JPL filed a petition before the CA, but the CA affirmed the Resolution of NLRC and considered the payment of the respondent's Service incentive leave and 13^th^ month pay.** **Issue: whether or not private respondents are entitled to Separation pay, 13^th^ month pay and Service incentive leave and granting they are so entitled, what should be the reckoning point for computing?** **Ruling:** **Yes.** **13^th^ month** **JPL cannot escape the payment of 13th month pay and service incentive leave pay to private respondents. Said benefits are mandated by law and should be given to employees as a matter of right. Presidential Decree No. 851, as amended, requires an employer to pay its rank and file employees a 13th month pay not later than 24 December of every year. However, employers not paying their employees a 13th month pay or its equivalent are not covered by said law. The term "its equivalent" was defined by the law's implementing guidelines as including Christmas bonus, mid- year bonus, cash bonuses and other payment amounting to not less than 1/12 of the basic salary but shall not include cash and stock dividends, cost-of-living-allowances and all other allowances regularly enjoyed by the employee, as well as non-monetary benefits** **Service Incentive leave** **On the other hand, service incentive leave, as provided in Art. 95 of the Labor Code, is a yearly leave benefit of five (5) days with pay, enjoyed by an employee who has rendered at least one year of service. Unless specifically excepted, all establishments are required to grant service incentive leave to their employees. The term "at least one year of service" shall mean service within twelve (12) months, whether continuous or broken reckoned from the date the employee started working. The Court has held in several instances that "service incentive leave is clearly demandable after one year of service.** **13^th^ month V SIL** **Admittedly, private respondents were not given their 13th month pay and service incentive leave pay while they were under the employ of JPL. Instead, JPL provided salaries which were over and above the minimum wage. The Court rules that the difference between the minimum wage and the actual salary received by private respondents cannot be deemed as their 13th month pay and service incentive leave pay as such difference is not equivalent to or of the same import as the said benefits contemplated by law. Thus, as properly held by the Court of Appeals and by the NLRC, private respondents are entitled to the 13th month pay and service incentive leave pay.** **RECKONING POINT** **While computation for the 13th month pay should properly begin from the first day of employment, the service incentive leave pay should start a year after commencement of service, for it is only then that the employee is entitled to said benefit.** **Rodriguez v. Park and Ride G.R. No. 222980, March 20, 2017** **Facts: Rodriguez a 25 years employee of Park N ride, Viceset Phils and Javier Spouses filed a complaint for Constructive dismissal and non payment of Service incentive leave.** **Because of the hostile environment and the way she treated by the spouses Javier she was force to resign from work. The Javier spouses accept her resignation, Rodriguez prayed for Service incentive leave pay, however spouses Javier claim that rodriguez was not entitled to service incentive leave pay.** **The Labor arbiter Dismissed the complaint of rodriguez for lack of merit. Because of voluntariness of rodriguez to resign.** **Rodriguez appealed to NLRC, which subsequently grant her appeal.** **Spouses Javier filed a motion for reconsideration and reinstate the decision of LA** **Rodriguez filed a rule 65 before the CA imputing Grave abuse of discretion on the NLRC, but the CA held that there was no constructive dismissal but rather rodriguez voluntarily resigned, and no illegal dismissal and order the respondent to pay rodriguez the Service incentive leave for 3 years 2006-2009** **Issue: whether Petitioner was entitled to full sevice incentive leave pay.** **Ruling:** **Yes: Article 95 of the Labor Code provides that every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave pay of five days with pay, subject to exceptions (i.e., when the employee is already enjoying vacation leave with pay of at least five days; and when the employee is employed in an establishment regularly employing less than ten employees). It was not shown here that petitioner Rodriguez was enjoying vacation leave with pay of at least five days while being employed by private respondents Spouses Javier; it was not shown that private respondents Spouses LABOR CASES Javier were merely employing less than 10 employees (on the contrary, private respondent spouses Javier stated that they were employing less than 15 employees). Hence, the award of service incentive leave pay to petitioner Rodriguez was proper.** **Applying Article 291 of the Labor Code in light of this peculiarity of the service incentive leave, we can conclude that the three (3)-year prescriptive period commences, not at the end of the year when the employee becomes entitled to the commutation of his service incentive leave, but from the time when the employer refuses to pay its monetary equivalent after demand of commutation or upon termination of the employee's services, as the case may be** **Thus, the prescriptive period with respect to petitioner's claim for her entire service incentive leave pay commenced only from the time of her resignation or separation from employment. Since petitioner had filed her complaint on October 7, 2009, or a few days after her resignation in September 2009, her claim for service incentive leave pay has not prescribed. Accordingly, petitioner must be awarded service incentive leave pay for her entire 25 years of service --- from 1984 to 2009 --- and not only three (3) years' worth (2006 to 2009) as determined by the Court of Appeal** **Title II Wages** **Art 97-127** A. **Definition** **-**Renumeration or earnings, however designated, 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, which 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 includes the fair and reasonable value as determined by the secretary of labor and employment, of board, lodging or other facilities customarily furnished by the employer to the employee. **Basic factor in determining employees' wages** "Fair day's wage for a fair day's labor- No work no pay -if there is no work performed by the employee there can be no wage or pay, unless of course the laborer was able willing and ready to work but was illegally locked out or suspended or dismissed, or otherwise illegally prevented from working. **WAGES VS SALARY** **Labor code- synonymous** **Civil Code- not synonymous** **Wages- Compensation for manual labor, skilled or unskilled paid at stated time, and measured by the day, week , month or season. (EXEMPTED FROM ATTACHMENT AND EXECUTION)** **Salary- hig