International Human Rights PDF

—————Module 1————— International Human Rights Universal Declaration of Human Rights (UDHR) Preamble Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice...

—————Module 1————— International Human Rights Universal Declaration of Human Rights (UDHR) Preamble Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law Whereas it is essential to promote the development of friendly relations between nations, Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge Article 4 No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 22 Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 23 Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. Everyone, without any discrimination, has the right to equal pay for equal work.  Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. Everyone has the right to form and to join trade unions for the protection of his interests. Article 24 Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 25 Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. Summary: Preamble (global & general observance) Inherent dignity, equal and inalienable rights Freedom of speech and belief and freedom from fear and want Equal rights of men and women universal respect for and observance of human rights and fundamental freedoms Article 4 (slavery stuff) No slavery or servitude Article 22 (social conditions) Right to social security Economic, social and cultural rights indispensable for his dignity and the free development of his personality Article 23 (working conditions) Right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment Equal pay for equal work Pay for himself and his family worthy of human dignity, and supplemented, if necessary, by other means of social protection Form and to join trade unions for the protection of his interests. Article 24 (leisure) Right to leisure Limitation of working hours Holidays with pay Article 25  Standard of living adequate for the health and well-being of himself and of his family (e.g. food, clothing, housing and medical care and necessary social services) Right to security after unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control Motherhood and childhood are entitled to special care and assistance Main thing highlighted in module: universal, inalienable, indivisible, and interrelated human rights of every human being International Covenant on Civil and Political Rights (ICCPR) Article 8 1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 2. No one shall be held in servitude. 3. (a) No one shall be required to perform forced or compulsory labour; (b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labor may be imposed as a punishment for a crime, the performance of hard labor in pursuance of a sentence to such punishment by a competent court; (c) For the purpose of this paragraph the term "forced or compulsory labor" shall not include: (i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors; (iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community; (iv) Any work or service which forms part of normal civil obligations. Article 22 Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not  prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention Summary Article 8 No (one should be held in) slavery & servitude No one should be required to perform force labor EXCEPT: ○ Regular work that prisoners might do as part of their detention or when they're released under certain conditions. ○ Military service (and if someone is a conscientious objector, the alternative service they might have to do). ○ Work required in emergencies, like during a disaster. ○ Any kind of work that is considered a regular duty for all citizens, like paying taxes or jury duty Article 22 Freedom of association ○ Form, trade unions, protection of interests There can’t be restrictions on someone's rights unless ○ The restrictions are set by law, and ○ it’s necessary for important reasons like safety, order, or protecting others, —and military and police personnel can help enforce this when necessary Countries recognizing this covenant cannot ○ Pass laws that would undermine or harm the rights and protections guaranteed by that Convention. ○ Interpret or apply existing laws in ways that would violate those guarantees. International Covenant on Economic, Social and Cultural Rights (ICESCR) Article 6: 1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual. Article 7: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favorable conditions of work which ensure, in particular: ○ (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; ○ (b) Safe and healthy working conditions; ○ (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; ○ (d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays Article 8 1. The States Parties to the present Covenant undertake to ensure: (a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; (b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations; (c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; (d) The right to strike, provided that it is exercised in conformity with the laws of the particular country. 2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State. 3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention. Article 9: The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance. Article 10: The States Parties to the present Covenant recognize that:  1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. 2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits. 3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law. Article 11 1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent 2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; (b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need. Summary: Article 6 Right to work of which he gets his living by To achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and technique To achieve steady economic, social and cultural development Political and economic freedoms Article 7 Just and favorable conditions of work which ensure, in particular: ○ Remuneration  Fair & equal remuneration for work ESPECIALLY between sex and genders Decent living ○ Safe and healthy working conditions ○ Equal opportunity for everyone to be promoted in his employment to an appropriate higher level ○ Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays Article 8 Form trade unions for promotion and protection of his economic and social interests Establish national federations or confederations, and the right of the latter to form or join international trade-union organization Trade unions to function freely subject to no limitations other than those prescribed by law Right to strike While some restrictions on rights can be imposed on state employees like the military and police, countries still need to uphold the worker protections Article 9 Social security & social social insurance Article 10 The family should be given the strongest protection and support possible because it is seen as the basic building block of society, especially when it comes to: ○ Starting a family ○ Taking care of and educating children who depend on them. Marriage must be based on the free choice of both people involved, meaning no one should be forced into marriage. Both spouses must agree willingly. Special protection should be accorded to mothers during a reasonable period before and after childbirth. Working mothers should be accorded paid leave or leave with adequate social security benefits. Protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage ○ Basically no child labor or any work that might be dangerous to their health, morality, or development Article 11 Right of everyone to an adequate standard of living (e.g. adequate food, clothing and housing, and to the continuous improvement of living conditions) Free from hunger ○ Improve methods of production, conservation and distribution of food ○ Equitable distribution of world food supplies Both documents have been accepted/ratified by the Philippines (ICESCR & ICCPR)  International Labour Organization (ILO) Conventions also recognize, protect, and promote workers' rights. ILO Conventions are treaties on international labor standards and labor rights Human Rights The objects involved in paper contract have human rights The rights you have simply because you are human Human rights cannot be taken away, only violated For the most part, human rights and dignity cannot be taken away. While everyone has human rights and while they are inalienable, divisible, and interrelated, they ARE NOT ABSOLUTE. There are conditions to consider. Universal recognition of human rights didn’t CREATE human rights but RECOGNIZED it Naturalistic & positivist view Principles of Human Rights Universal: everyone is entitled to human rights wherever they may be in the world Inalienable: human rights can never be taken away by anyone or anything from a human being Indivisible: there is no hierarchy of human rights. They are all equally important. You can have all human rights or none at all Interrelated: Every human right contributes to the realization of an individual’s human dignity Domestic Sources 1987 Constitution Ratified after ending the dictatorship of Fr. Marcos Sr. Main points: social justice & human rights Article 13 (labor & constitutional rights n’ duties of workers & employers) State provides full protection of labor (overseas & local), organized & unorganized, to promote full & equal employment opportunities for all Self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law Security of tenure, humane conditions of work, and a living wage Policy and decision-making processes affecting their rights and benefits The government supports cooperation between workers and employers, using voluntary and peaceful methods (like 3rd party conciliation) to settle disputes and promote harmony in the workplace. Workers’ right to receive a fair share of the benefits (or profits) generated from their work; & employers’ right to receive reasonable returns on their investments, as well as the ability to expand and grow their businesses In essence, the government aims to balance the interests of both workers and employers, ensuring that workers are fairly compensated while also allowing businesses to thrive Labor Code of the Philippines Governs employment standards and labor relations in the Philippines Promulgated by Marcos Sr. Presidential Decree (PD) No. 442 It is the primary statutory authority on labor law in the country, though this is not to say that it is the only labor statute in the Philippines ○ E.g. Batas Kasambahay ○ Does not apply to every worker (unlike section 3 of article 8 of the constitution) ○ Only covers employees in private companies or organizations Like Government owned Government controlled (GOCC) corporations Some of em actually obsolete after multiple revisions Justiprudence Course of Supreme Course decisions in applying and interpreting the Philippine law DOLE Issuances Not really law but ‘rules and regulations’ implementing labor laws Considered binding unless declared invalid by court Comes in different forms: department orders, labor advisories, memorandum circulars DOLE has the power to make rules to implement the provisions of the Labor Code, and the Omnibus Rules Implementing the Labor Code are an example of that rule-making power being used to clarify or enforce labor laws in the country. Guiding Principles on Labor Law Mutuality does not apply What is mutuality? ○ Binding effect on the parties of any agreement is premised on two principles: Any obligation arising from contract has the force of law between the parties There must be mutuality between the parties based on their essential equality. Any contract that appears to be heavily weighed in favor of only one of the parties so as to lead to an unconscionable result is void ○ Can be seen in Article 1308 of the Civil Code ○ If there is modification, must have meeting of the minds & must still be fair LMAO this doesn’t apply in labor law ○ Even if an employer and an employee consensually agreed to do away with all the labor rights and benefits under the Labor Code, their agreement would be ineffective ○ Employee would remain entitled to their rights and benefits under the Labor Code ○ Labor Code as the minimum benefits granted to employees or the labor standards that must be met by every private company or entity ○ So there’s no equality between the parties (employer & employees)  In labor law, inequality instead of mutuality is the rule You can never be equal between employer and employee The constitution affords full protection to labor (dignity of persons) and discourages exploitation Interpretation favors labor From the inherent inequality between employer and employee, labor law must be interpreted or construed in favor of labor Can be seen in Article 4 of Labor Code Same can be seen in Article 1702 of Civil Code ○ Labor contracts in the favor of safety and decent living for laborer Only apply it though IN CASE OF DOUBT!!!! ○ Not when evidences and provisions are clear/have no misinterpretations Management Prerogative For employers—right of management prerogative Every employer has the inherent right to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, the time, place and manner of work, work supervision, transfer of employees, lay-off of workers, and discipline, dismissal, and recall of employees ○ Except if it violates labor laws & equity & substantial justice Protects the employer's right to expect from its employees not only good performance, adequate work, and diligence, but also good conduct and loyalty As long as the company's exercise of the same is in good faith to advance its interest and not for the purpose of defeating or circumventing the rights of employees under the laws or valid agreements —————Module 2————— Employees and Employers ALL employees -> workers All workers NOT employees Labor Code: applies only to EMPLOYEES and not to ‘workers’ who are not employees Article 97 of Labor Code ○ "Employee" includes any individual employed by an employer ○ "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the government and all its branches, subdivisions and instrumentalities, all government-owned or controlled corporations and institutions, as well as non-profit private institutions, or organizations. Labor Code does not provide clear definitions of who employees and employers are ○ For there to be an employee, there must be an employer (relational) YOU NEED TO READ CASES BIH The Test of an Employer-Employee Relationship Supreme court determining relationship between employers and employees: Four-Fold Test To determine existence of employer-employee relationship Looks at 4 things: ○ Selection & engagement of worker ○ Payment of wages & salaries ○ Power of dismissal ○ Power of control 4th factor: control test (most important) ○ Whether principal (employer) has power to control end result & process used to achieve outcome ○ If a worker is given flexibility in how they work, they’re likely not an employee, but if the employer controls both the result and the process, it creates an employer-employee relationship Economic Reality Test (Supplement test) Examines the nature of the relationship between the principal and the worker based on the totality of circumstances of the whole economic activity If the relationship is one of economic dependency, then the worker may be considered an employee ○ For continued employment in line of business  ○ e.g. they don’t have other clients or contracts, or their livelihood depends on this one job, this suggests they are an employee rather than an independent contractor who could work for various companies or clients —————Module 3————— Kinds of Employees based on Security of Tenure The right to security of tenure is a constitutionally protected right of an employee ○ Not to be terminated from employment without valid cause Article 294 (279) of Labor Code In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (As amended by Section 34, Republic Act No. 6715, March 21, 1989) While other kinds of employees may also be terminated for just or authorized causes under the law, they may be terminated for certain additional causes such as the end of a project or a season Article 280 (295) of Labor Code: Regular and Casual Employment An employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. Article 281 (296) of Labor Code: Probationary Employment Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. Kinds of Employees based on Security of Tenure Five kinds of employees based based on right to security of tenure can be identified in the Labor Code Labor Code Employee Types Regular Employees: who may be dismissed only upon just or authorized causes Project Employees: who enjoy security of tenure only for the duration of their projects and may be dismissed upon completion or termination of their projects Seasonal Employees: who enjoy security of tenure only during the season of their employment and may be terminated at the end of the season Casual Employees: who do not enjoy security of tenure in the first year of their employment, after which they become regular employees; and Probationary Employees: who may be dismissed upon just or authorized causes or if they fail to qualify as regular employees in accordance with reasonable standards made known to them at the time of their engagement (Jurisprudence added) Fixed-Term Employee: to determine if a fixed-term employment contract is legitimate and not meant to bypass the employee's right to job security: 1. Mutual agreement: The fixed employment period must have been agreed upon knowingly and voluntarily by both the employer and the employee, without any coercion, undue pressure, or unfair circumstances that affect the employee's ability to freely consent. 2. Equal footing: Both the employer and the employee must have dealt with each other on relatively equal terms, meaning the employer must not have dominated or exerted moral pressure on the employee to accept the contract. a. E.g. when the employee has special skills that differentiate them from the market ○ Such an employee enjoys security of tenure only within their fixed period of employment and may be terminated at the end of this period Contractual Employees Not part of ‘classification of employees’ based on security of tenure because ○ Of other factors, such as the nature of their employment contract and work arrangement (does not ensure job security) ○ They may still be considered regular employees even though they are termed "contractual”. However, they typically perform work for a principal (a third party or client) rather than their direct employer (usually a contractor or agency) Illegitimate cases to outsource workers: avoid employer-employee relationship and giving security of tenure ○ Fire contractor / replace worker from contractor ○ Prevent labor unions ART. 106. Contractor or Subcontractor Whenever an employer enters into a contract with another person for the performance of the farmer’s work, the employees of the contractor and of the latter’s subcontractor, if any, shall be paid in accordance with the provisions of this Code. In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the contracting-out of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he may make appropriate distinctions between labor-only contracting and job contracting as well as differentiations within these types of contracting and determine who among the parties involved shall be considered the employer for purposes of this Code, to prevent any violation or circumvention of any provision of this Code. ○ Authority to regulate: The Secretary can make rules that limit or stop certain labor contracting practices if those practices harm workers' rights. ○ Differentiating types of contracting: The Secretary can make distinctions between: Labor-only contracting: When the contractor merely provides workers but doesn’t have substantial capital or control over the project, often considered illegal. Job contracting: When the contractor has the resources and control to carry out a specific job or service, which may be considered legal if done properly. ○ Defining the employer: The Secretary can also decide who should be considered the employer in different contracting situations to prevent any misuse of the law or attempts to bypass the protections in the Labor Code. There is “labor-only” contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. ○ Labor-only contracting occurs when: The contractor (the person or company supplying workers) does not have substantial capital or investment (e.g., tools, equipment, facilities). The workers provided by this contractor are performing tasks that are directly related to the main business of the employer (the company hiring them).  ○ In such cases, the contractor is viewed as merely an agent of the employer. This means the contractor is not truly independent and is acting more like a middleman. ○ Employer responsibility: Since the contractor is seen as an agent, the real employer is considered to be the company benefiting from the workers’ labor. Therefore, the employer is responsible for the workers’ rights and benefits, just as if the workers were directly employed by the company. ART. 107. Indirect Employer The provisions of the immediately preceding article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project. ART. 108. Posting of Bond An employer or indirect employer may require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the employees should the contractor or subcontractor, as the case may be, fail to pay the same. ART. 109. Solidary Liability The provisions of existing laws to the contrary notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purposes of determining the extent of their civil liability under this Chapter, they shall be considered as direct employers. Summary: Article 106 Employees of the contractor and of the latter’s subcontractor, if any, shall be paid in accordance with the provisions of this Code Employer shall be jointly and severally liable with his contractor or subcontractor/agency ○ In the same manner and extent that he is liable to employees directly employed by him (even in terms of failure to pay wages or illegal dismissal) Secretary of Labor: ○ Authority to regulate: The Secretary can make rules that limit or stop certain labor contracting practices if those practices harm workers' rights. ○ Differentiating types of contracting: The Secretary can make distinctions between: Labor-only contracting: When the contractor merely provides workers but doesn’t have substantial capital or control over the project, often considered illegal. Job contracting: When the contractor has the resources and control to carry out a specific job or service, which may be considered legal if done properly.  ○ Defining the employer: The Secretary can also decide who should be considered the employer in different contracting situations to prevent any misuse Labor-only contracting occurs when: ○ The contractor (the person or company supplying workers) does not have substantial capital or investment (e.g., tools, equipment, facilities). ○ The workers provided by this contractor are performing tasks that are directly related to the main business of the employer (the company hiring them). In such cases, the contractor is viewed as merely an agent of the employer. This means the contractor is not truly independent and is acting more like a middleman. Employer responsibility: Since the contractor is seen as an agent, the real employer is considered to be the company benefiting from the workers’ labor. Therefore, the employer is responsible for the workers’ rights and benefits, just as if the workers were directly employed by the company. Article 107 Law should apply to any middleman/agency that bridges workers to principals/employers Article 108 Have a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the employees should the contractor or subcontractor not pay Article 109 Employer (or indirect employer) and the contractor or subcontractor are jointly responsible Both the employer and the contractor or subcontractor shall be treated as direct employers This provision means that if any labor laws are violated—such as those related to wages, working conditions, unjust termination, or other employment-related rights—both the principal employer and the contractor or subcontractor can be held accountable. Workers can claim their rights from either party, ensuring they are protected regardless of whether they are employed directly by the principal or through a contractor. Prevents employers from evading responsibility for labor law violations by outsourcing labor through contractors or subcontractors. DOLE D.O. 174 Substantial Capital - at least 5 million / php 5,000,000 Illegitimate contracting—no capital assets the agency (because this can create a) dummy agency ○ Security of tenure can be at risk/contractual employees can be at risk Directly related the work, NO tools and equipment  OR without tools and capital AND contractor/subcontractor lacks control Explicitly prohibits labor-only contracting to protect workers from exploitation and ensure they receive their rightful benefits and protections. The provision emphasizes that any arrangement deemed labor-only will result in the principal employer being considered the direct employer, thus holding them accountable for compliance with labor laws. Job Contracting: ○ As a legitimate contractor, meaning they: Have substantial capital or investment (such as their own tools, equipment, facilities, etc.), Perform a specific and independent job or service (which is not directly related to XYZ Corp's core business), Are independent in managing the work and supervising the employees, ○ Then this would be a legal arrangement. This is called job contracting. In this case, ABC Staffing would be responsible for its workers’ rights and benefits, and XYZ Corp would only be liable for compliance if ABC Staffing fails to meet its obligations. ○ For there to be subcontractors: Subcontractors are independent in their job in manner and method Has substantial capital Free from control and/or direction of principal in all matters connected to the performance Ensures compliance with rights and benefits for subcontractor under labor laws In situations where the principal (XYZ Corp) takes action to illegally terminate workers, and ABC Staffing fails to prevent or rectify the situation, both parties can be held jointly and solidarily liable.  Section 6: Other illicit forms of employment arrangements ○ When middleman supplies work to workers without tools ○ Contracting workers from in-house agencies Agency must be independent Workers must have capital and individual control/independence ○ Cannot contract when there is a strike Interferes with right to strike and protest/negotiate ○ Company hires external workers (often non-union) to perform tasks that unionized employees are already doing ○ Requiring contractor's/subcontractor's employees to perform functions currently being performed by regular employees ○ Requiring employees to sign unfair agreements ○ Repeated hiring of workers on short contracts ○ Short contracts for employment under a longer agreement If the contract for an employee is shorter than the main service agreement they’re part of, it’s problematic unless there’s a valid reason E.g. switching out different workers but same skill If the contractor/agency is found guilty/labor-only, then employees will be employees of the principal Contractual vs. Independent Contractual is different from INDEPENDENT CONTRACTOR ○ Contractual: employer-employee relationship with their employer ○ Independent contractor: no employer Trilateral Relationship The contractual relationship between the principal and the contractor, which should be embodied in a written Service Agreement and which is governed by the Civil Code; The employer-employee relationship between the contractor and their employee, which should be embodied in a written Employment Contract and which is governed by the Labor Code; and The legal relationship between the employee and the principal, which is provided and governed by law, specifically, Articles 106-109 of the Labor Code. Liability of Principal The legal relationship between the principal and the contractual employee in a legitimate contracting or subcontracting arrangement deems the former an indirect employer of the latter In contrast, in illegitimate contracting or subcontracting arrangements such as labor-only contracting or any other illicit form of employment arrangement, the principal is deemed the direct employer of the contractual employee and the contractor is deemed an agent of the principal ○ Principal takes the place of the contractor in the employer-employee relationship and becomes fully liable ○ For instance, Section 11 is violated if there is in fact no written Service Agreement between the principal and the contractor Contractualization circumvents or weaponizes the law in order to deprive workers of their right to security of tenure and other rights at work. It does this by classifying the workers as independent contractors, talents, partners, contractual employees, fixed-term employees, project or seasonal employees, or other non-regular workers, whereas they should be considered regular employees Security of Tenure A contractual employee is also an employee, they may be terminated from employment ○ The contractor (or the principal, if it is deemed the direct employer) may validly dismiss a contractual employee in accordance with law ○ Possibility of termination not of their employer-employee relationship but of the Service Agreement Service Agreement between a principal and a contractor may be pre-terminated if either party breaches the contract Pre-termination of the Service Agreement, the principal and the contractor become solidarily liable for all the unpaid wages and benefits of the contractual employees working under the Service Agreement  In case of expiration of Service Agreement, employees can: ○ Voluntarily resign from their employment with the contractor within three months; or ○ Wait for "reemployment" up to three months and, if no such "reemployment" is provided by the contractor within this period, receive separation pay and other benefits associated with termination due to authorized cause. Employees with Specific Rights and Privileges Apprentice & Learners Workers undergoing on-the-job training Apprentices are workers covered by written apprenticeship agreements undergoing "practical training on the job supplemented by related theoretical instruction." ○ At least 15 years of age ○ Possess vocational aptitude and capacity for appropriate tests; and ○ Possess the ability to comprehend and follow oral and written instructions ○ Highly technical industries may employ apprentices ○ Period of apprenticeship don’t exceed 6 months ○ Wages in no case shall start below 75 percent of the applicable minimum wage ○ Signed by guardians ○ Training venues: Premises of employer (one to one apprenticeship) Premises of designated firms (group apprenticeship) DOLE training center/public training institution Learners are "persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable" ○ Not exceed 3 months ○ Learners may be employed when no experienced workers are available So work quality doesn’t diminish and employment opportunities are used well Employment does not create unfair competition in terms of labor costs ○ Agreement shall include The names and addresses of the learners; 3 month duration Wages/salary rate of learners which begins not less than 75% of minimum wage A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. If termination of employment is 2 months ○ Learners employed by their piece works shall be paid in full rate Kasambahay; Batas Kasambahay Employee who is engaged in domestic work regularly  Working Children: domestic workers above 15 but below 18 Board, Lodging & Medical—Provide at least 3 meals and sleeping arrangements Respect of privacy—all forms of communication & private affairs, granted they present satisfactory services Access to Outside Communication Standard Treatment Right to Education & Training—Afford domestic worker opportunity to finish basic education/alternative learning access (+ higher education) Prohibition Against Privileged Information—NDA You can’t: ○ Take money from loss of damage ○ Ask them to cover placement fees ○ Use promissory notes, vouchers, coupons, other than CASH ○ Withhold wage Minimum wage ○ Two thousand five hundred pesos (P2,500.00) a month for those employed in the National Capital Region (NCR); ○ (b) Two thousand pesos (P2,000.00) a month for those employed in chartered cities and first class municipalities; and ○ (c) One thousand five hundred pesos (P1,500.00) a month for those employed in other municipalities. Premium payments or contributions shall be shouldered by the employer. However, if the domestic worker is receiving a wage of Five thousand pesos (P5,000.00) and above per month, the domestic worker shall pay the proportionate share in the premium payments or contributions, as provided by law. Neither the domestic worker nor the employer may terminate the contract before the expiration of the term ○ Or else pay 15 days worth/forfeit 15 days worth Give notice 5 days before intended termination Termination by domestic worker: ○ Verbal/domestic abuse ○ Crime ○ Violation of terms and agreements ○ Disease against worker Termination by Employer: ○ Disobedience ○ Neglect ○ Fraud ○ Crime ○ Violation of terms and agreements ○ Disease against employers Child Employees Person below 18 Children who are at least 15 years old may be lawfully employed as long as they are not engaged in any hazardous or deleterious undertaking or any of the worst forms of child labor ○ For a limited amount of hours Children under 14 below can only be employed in certain situations ○ Works directly under parent or guardian ○ In entertainment ○ Work does not interfere with schooling Special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development including child labor and its worst forms Child below 15: 20 hrs/week, 4hrs/day Child 15-18: 40 hrs/week, 8hrs/day No work between 8PM - 6AM; 10PM - 6AM The wages, salaries, earnings and other income of the working child shall belong to him/her in ownership and shall be set aside primarily for his/her support, education or skills acquisition and secondarily to the collective needs of the family: Provided, That not more than twenty percent (20%) of the child’s income may be used for the collective needs of the family. No: ○ Slavery ○ Prostitution ○ Illegal ○ Hazardous ○ Abuse ○ Under/above ground/water ○ Dangerous ○ Difficult ○ Advertising Vices Need to provide access at least primary and secondary education (employer) Minimum wage the same for adults Women Employees Protect women against discrimination in employment and grant them certain specific rights and privileges as employees No woman should be employed to work: ○ Industrial undertaking between 10PM - 6AM ○ Commercial (other than) 12 PM - 6AM ○ Agricultural (needs 9 hours of sleep) Facilities ○ Proper seating  ○ Separate toilets ○ Age & standards for the job Maternity leave benefits Encourage family planning Discrimination prohibited ○ On the account of sex ○ Payment of a lesser compensation ○ Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants ○ Shall not allow the deem of resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. ○ To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy ○ To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant Any woman who is permitted or suffered to work, with or without compensation under the effective control or supervision of the employer for a substantial period of time is an employee Magna Carta for Women ○ Condemns discrimination against women ○ Women’s rights as human rights Human rights are indivisible ○ Provide ample opportunities to enhance and develop their skills, acquire productive employment and contribute to their families ○ Women empowerment: opportunities and inclusivity for women ○ A measure: failure to provide for mechanisms to offset or address sex or gender-based disadvantages or limitations of women, as a result of which women are denied or restricted in the recognition and protection of their rights ○ Marginalization LGBTQ Employees SOGIE: Philippine HIV & AIDS Policy Act ○ Gender Expression—gender identity ○ Gender Identity—personal sense of identity ○ Sexual Orientation—direction of sexual/emotional attraction ○ Duty of public & private establishments to prevent discrimination against PLHIV Discrimination based on HIV status Safe Spaces Act ○ Prohibits gender-based streets and public spaces sexual harassment as well as gender-based online sexual harassment  ○ Sexist, homophobic, transphobic, and misogynistic remarks or slurs in public spaces (such as a workplace) or online is one way to commit either of these crimes Of the Law ○ Sexual harassment in the workplace as any unwanted, inappropriate, or offensive behavior of a sexual nature that creates a hostile or intimidating work environment. ○ Can occur in various forms, including verbal, non-verbal, and physical actions ○ Employers are mandated to create a safe workplace, policies, and training environment free from sexual harassment ○ Complaining to Employees in case of harassment PWD Employees Support of PWD persons; integrate to mainstream society Disabled Persons are those suffering from restriction of different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being ○ Loss in psychological, physiological, or anatomical structure of function ○ Record of impairment ○ Regarded as having impairment Handicap refers to a disadvantage for a given individual resulting from an impairment or a disability Qualified Individual with a Disability shall mean an individual with a disability who can perform the essential functions of the employment position that such individual holds or desires. Equal opportunity 5% for industries reserved for PWD Private entities shall be entitled to an additional deduction, from their gross income, equivalent to twenty-five percent (25%) of the total amount paid as salaries and wages to disabled person ○ shall also be entitled to an additional deduction from their net taxable income, equivalent to fifty percent (50%) Right to assemble, organize No discrimination ○ Limiting, segregating or classifying a disabled job applicant in such a manner that adversely affects his work opportunities; ○ Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out a disabled person unless such standards, tests or other selection criteria are shown to be job-related for the position in question and are consistent with business necessity; Unless they can’t do the job ○ Utilizing standards, criteria, or methods of administration that: have the effect of discrimination on the basis of disability; or  perpetuate the discrimination of others who are subject to common administrative control ○ Giving less compensation/wages ○ Giving a job they can’t perform ○ Favoritism