labor law

7/30/2019 Labor Law Doc File

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LABOR LAW 1

1stSemester, AY 2008-2009Prof. E. (Leo) D. Battad

College of LawUniversity of the Philippines

SUGGESTED TEXTBOOK:

CA Azuena! "he La#or Code withCo$$ents and Cases (Latest Edition)

REFERENES:

%a$son %. Alantara! and %a$son B.Alantara &r.! Philippine La#or and %oial LegislationAnnotated

'* Philippine Constitution "he La#or Code of the Philippines and

its +$ple$enting ,ules -,egulations

Pertinent +nternational u$an ,ights +nstru$entsand +L/ Conventions! ,eo$$endations and La#or0relatedlaws

Assigned ,eadings

!" !NTRODUT!ON TO LABOR LAW

A" L#$%r #s # %&'e(t

'. 1eneral %enseLa#orphysial toil although it does not neessarily e2ludethe appliation of s3ill! thus there is s3illed and uns3illedla#or.

%3illfa$iliar 3nowledge of any art or siene$ united withradiness and de2terity in e2eution or perfor$ane or in theappliation of the art or siene to pratial purposes.

4or3 is #roader than la#or as wor3 overs all for$s ofphysial or $ental e2ertion! or #oth o$#ined! for theattain$ent of so$e o#5et other than rereation ora$use$ent per se.

6. "ehnial sense

4or3er#roader than e$ployee as wor3ers $ay refer toself0e$ployed people! and those wor3ing in the servie andunder the ontrol of another! regardless of ran3! title! ornature of wor3.

E$ployee salaried person wor3ing for another whoontrols or supervises the $eans! $anner or $ethod ofdoing the wor3.

B" L#$%r L#)

'. Definition

La#or legislaton la#or standards 7 la#or relations

a. onsists of statutes! regulations and 5urisprudene#. governing the relations #etween apital and la#or. #y providing for ertain e$ploy$ent standards

and a legal fra$ewor3d. for negotiating! ad5usting and ad$inistering those

standards and other inidents of e$ploy$ent.

L#$%r st#&*#r*s8 whih sets out the $ini$u$ ter$s!onditions! and #enefits of e$ploy$ent that e$ployers $ustprovide or o$ply with and to whih e$ployees are entitledas a $atter of legal right.

L#$%r re+#t%&s +#): whih defines the status! rights andduties and the institutional $ehanis$s that govern theindividual and olletive interations of e$ployers!e$ployees or their representatives.

%/C+AL LE1+%LA"+/9 :%. LAB/, LA4%

%oial legislation8 provides partiular 3inds of protetion or#enefits to soiety or seg$ents thereof in furtherane ofsoial 5ustie.

La#or laws are neessarily soial legislation. But todifferentiate! la#or laws diretly affet e$ploy$ent whilesoial legislation governs effets of e$ploy$ent.

La#or laws are soial legislation #ut not all soial legislationare la#or laws.

6. %oial &ustie! Const.! Art. ++! %e. ';< Art. =+++!%e. '0>

Section 10. The State shall promote social justice inall phases of national development.

Section 1.The Congress shall give highest priority tothe enactment of measures that protect and enhancethe right of all the people to human dignity, reducesocial, economic, and political inequalities, andremove cultural inequities by equitably diffusingwealth and political power for the common good.

To this end, the State shall regulate the acquisition,ownership, use, and disposition of property and itsincrements.

Section 2. The promotion of social justice shallinclude the commitment to create economicopportunities based on freedom of initiative and self-

reliance.

AT!C"# $!!! % "A&'Section 3. The State shall afford full protection tolabor, local and overseas, organi(ed andunorgani(ed, and promote full employment andequality of employment opportunities for all.!t shall guarantee the rights of all wor)ers to self-organi(ation, collective bargaining and negotiations,and peaceful concerted activities, including the rightto stri)e in accordance with law. They shall be entitledto security of tenure, humane conditions of wor), anda living wage. They shall also participate in policy anddecision-ma)ing processes affecting their rights andbenefits as may be provided by law.

The State shall promote the principle of sharedresponsibility between wor)ers and employers andthe preferential use of voluntary modes in settlingdisputes, including conciliation, and shall enforce theirmutual compliance therewith to foster industrialpeace.

The State shall regulate the relations betweenwor)ers and employers, recogni(ing the right of laborto its just share in the fruits of production and the rightof enterprises to reasonable returns to investments,and to e*pansion and growth.

"he ai$ and the reason and! therefore! the 5ustifiation ofla#or laws is soial 5ustie.

S%'#+ .st'e: &P Laurel in Calalangneither o$$unis$!nor despotis$! nor ato$is$ not anarhy #ut the


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hu$anization of laws and the e?ualization of soial andeono$i fores #y the %tate so that 5ustie in its rationaland o#5etively seular oneption $ay at least #eappro2i$ated.

"he pro$otion of the welfare of all the people! the adoption#y the 1overn$ent of $easures alulated to insureeono$i sta#ility of all the o$ponent ele$ents of soietythrough the $aintenane of proper eono$i and soiale?uili#riu$ in the interrelations of the $e$#ers of the

o$$unity! onstitutionality! through the adoption of$easures legally 5ustifia#le! or e2tra0onstitutionally! throughthe e2erise of powers underlying the e2istene of allgovern$ents! on the ti$e0honored priniple of salus populiest supre$a le2.

La#or is the pri$ary soial eono$i fore! thus the %tateshall protet the rights of wor3ers and pro$ote theirwelfare.

%&stt.t%+ R/ts #&* #&*#tes

"he %tate shall afford full protetion to la#or and this isfound in the '>@! '*>! and '* Consti. "he %tate affir$sla#or as a pri$ary soial eono$i fore thus! it shall protet

the right of the wor3ers and pro$ote their welfare.

Basi rights of wor3ers guaranteed #y the onsti8

'. ,ight to organize the$selves6. Condut olletive #argaining or

negotiation with $anage$ent>. Engage in peaeful onerted ativities!

inluding to stri3e in aordane withlaw

. En5oy seurity of tenure@. 4or3 under hu$ane onditions. ,eeive a living wage*. Partiipate in poliy and deision0$a3ing

proesses affeting their rights and#enefits as $ay #e provided #y law.(%e. >! =+++).

/ther provisions in the Consti8

') ,ight to for$ unions! assoiations! soieties forpurposes not ontrary to law.

6) ,ight to self organization shall not #e denied togovern$ent e$ployees.

>) ,egular far$wor3ers shall have the right to owndiretly or olletively the lands they till.

) "he %tate shall #y law and for o$$on good!underta3e in ooperation with the private setor aontinuing progra$ of ur#an land refor$ andhousing.

@) "he %tate shall protet wor3ing wo$en #yproviding safe and healthful wor3ing onditions

ta3ing into aount their $aternal funtions.) La#or is entitled to seats allotted to party0list

representatives*) "he %tate shall pro$ote industrialization and full

e$ploy$ent #ased on sound agriulturaldevelop$ent and agrarian refor$.

) Congress shall reate an ageny to pro$ote thevia#ility and growth of ooperatives.

) "he 1ovt shall inrease salary sales of the otheroffiials and e$ployees of the 9ational1overn$ent.

';) Career ivil servie e$ployees shall #e entitled toappropriate separation pay and to retire$ent andother #enefits under e2isting laws.

a. DefinitionBalaning of +nterest

Calalang v. 4illia$s! *; Phil. *6 (';)

S%'#+ .st'e: &P Laurel in Calalangneither o$$unis$!nor despotis$! nor ato$is$ not anarhy #ut thehu$anization of laws and the e?ualization of soial andeono$i fores #y the %tate so that 5ustie in its rationaland o#5etively seular oneption $ay at least #eappro2i$ated.

%oial 5ustie is the pro$otion of the welfare of all thepeople! the adoption #y the 1overn$ent of $easuresalulated to insure eono$i sta#ility of all the o$ponent

ele$ents of soiety through the $aintenane of propereono$i and soial e?uili#riu$ in the interrelations of the$e$#ers of the o$$unity! onstitutionality! through theadoption of $easures legally 5ustifia#le! or e2tra0onstitutionally! through the e2erise of powers underlyingthe e2istene of all govern$ents! on the ti$e0honoredpriniple of salus populi est supre$a le2.

anila Eletri Co. v. %e. of La#or! >>*%C,A ; (6;;;)

4hen will the CBA ta3e effet

F0o0000000000000000000000000000000+00000000000000000000000000CBA e2piration $onths

%eretary of La#or $ay deter$ine the date of retroativityas part of his disretionary powers. But this disretionarypower shall only #e e2erised only when 5urisdition has#een vested.

Assailed ,esolution8Artile 6>(g) gives the %eretary 5urisdition. CBAnegotiated within si2 $onths after the e2piration of thee2isting CBA retroats to the day i$$ediately following suhdate and if agreed thereafter! the effetivity depends on theagree$ent of the parties. But the law is silent as to theretroativity of a CBA ar#itral award or that granted not #yvirtue of the $utual agree$ent of the parties #ut #yintervention of the govern$ent. Despite the silene of the

law! the Court rules herein that CBA ar#itral awards grantedafter si2 $onths fro$ the e2piration of the last CBA shallretroat to suh ti$e agreed upon #y #oth e$ployer and thee$ployees or their union. A#sent suh an agree$ent as toretroativity! the award shall retroat to the first day of thesi20$onth period following the e2piration of the last day ofthe CBA should there #e one. +9 the a#sene of a CBA! the%eGs deter$ination of the date of retroativity as part of hisdisretionary powers over ar#itral awards shall ontrol.

eld8 4here an ar#itral award is granted #eyond si2 $onthsafter the e2piration of the e2isting CBA! and there is noagree$ent #etween the parties as to the date of effetivitythereof! the ar#itral award shall retroat to the first day afterthe si20$onth period following the e2piration of the last dayof the CBA. But instead of De '! '@ to 9ov >; '* (CBA

had a 60year applia#ility period)! the Court $odified it to&une '! ' to ay >'! '.

O& s%'#+ 3.st'e8 HI"Jhis Court annot ignore theenor$ous ost that petitioner will have to #ear as aonse?uene of the fill retroation of the ar#itral award tothe date of the e2piry of the CBA and the inevita#le effetthat it would have on the national eono$y. /n the otherhand! under the poliy of soial 5ustie! the law #ends over#a3ward to ao$$odate the interests of the wor3ing lasson the hu$ane 5ustifiation that those with less privilege inlife should have $ore in law. Balaning these twoontrasting interests! this Court turned to the ditates offairness and e?uita#le 5ustie and thus arrived at a for$ulathat would address the onerns of #oth sides. "hus! Ar#itral

award $ust retroat to the first day AK"E, the si20$onthperiod following the last day of the CBA.

Azuena8

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"he Consitution has not overloo3ed the rights of apital. +tprovides that! Hthe %tate reognizes the indispensa#le role ofthe private setor! enourages private enterprise! andprovides inentives to needed invest$ents (Art. ++! %e. 6;).

4hile la#or is entitled to a 5ust share in the fruits ofprodution! the enterprise has an e?ually i$portant right notonly to reasona#le returns on invest$ent #ut also toe2pansion and growth.

%hared ,esponsi#ility #etween wor3ers and e$ployers Preferential use of voluntary $odes of settling disputes.

a. Koundation8 Polie Power and %tate Protetion

4hile soial 5ustie is the raison dGetre of la#or laws! their#asis or foundation is the polie power of the %tate.

a. %tate legislatures $ay enat laws for theprotetion of the safety and health of e$ployees.

#. ,ight of every person to pursue a #usiness!oupation! or profession is su#5et to thepara$ount right of the govern$ent as a part of itspolie power to i$pose suh restritions andregulations as the protetion of the pu#li $ay

re?uire.

Legal Classifiation8 (disussed in light of the suspension ofdeploy$ent of wo$en)

a. suh lassifiation rest on su#stantial distintions#. they are ger$ane to the purpose of the law. they are not onfined to e2isting onditionsd. they apply e?ually to all $e$#ers of the sa$e

lass

#. Koundation8 Polie Power and %tate Protetion

C% Estate! +n. v. %oial %eurity%yste$! '>6 %C,A '; (')

"he ase of two #usinesses! one was in real estate and theother was in the logging #usiness. /ne owner wasde$anding for a refund fro$ %%% and it refused to su#sri#ethe e$ployees of the 6nd #usiness to %%% #eause the#usiness has not #een in operation for 6 years (whih wasthe re?uire$ent of the law) yet.

"he %oial %eurity Law was enated pursuant to the poliyof the govern$ent Hto develop! esta#lish gradually andperfet a soial seurity syste$ whih shall #e suita#le to theneeds of the people throughout the Philippines! and shallprovide protetion against the hazards of disa#ility! si3ness!old age and death. !t s t.s '+e#r t#t s#* e'tme&tm(+eme&ts te /e&er#+ )e+4#re m#&*#te %4 te%&stt.t%& #&* '%&stt.tes # +e/tm#te eer'se %4

te (%+'e (%)er %4 te St#te"

+t is the intention of the law to over as $any persons aspossi#le so as to pro$ote the onstitutional o#5etive ofsoial 5ustie.

Co$pulsory overage of the e$ployer shall ta3e effet onthe first day of his operation! and that of the e$ployee onthe date of his e$ploy$ent (,A ''' as a$ended #y ,A6@). "he two year presription of the prior law $ust #eonsidered prevailed over #y the later law and $oreover! thelegislative intent $ust #e given effet.

. Li$its of Use

PLD" v. 9L,C! ' %C,A *' (')

PLD" e$ployee pro$ised to failitate the approval of theo$plainantsG appliations for telephone installation and thenreeived fro$ the$ an a$ount of $oney in onsideration ofher pro$ise.

"he rule e$#odied in the La#or Code is that a persondis$issed for ause as defined therein is not entitled toseparation pay. "he ases a#oveited (where different aseswere ited proving that so$e o$panies still allowedseparation pay despite the degree of the ground upon whihthe e$ployees were #eing dis$issed for) onstitute thee2eption! #ased upon onsiderations of e?uity. E?uity has#een defined as 5ustie outside law! #eing ethial rather than5ural and #elonging to the sphere of $orals than of law. +t is

grounded on the preepts of onsiene and not on anysantion of positive law. ene! it annot prevail against thee2pressed provision of the la#or laws allowing dis$issal ofe$ployees for ause and without any provision forseparation pay.%eparation pay shall #e allowed as a $easure of soial5ustie only in those instanes where the e$ployee is alidlydis$issed for auses other than serious $isondut or thoserefleting on his $oral harater. 4here the reason for thevalid dis$issal is! for e2a$ple! ha#itual into2iation or anoffense involving $oral turpitude! life theft or illiit se2ualrelations with a fellow wor3er! the e$ployer $ay not #ere?uired to give the dis$issed e$ployee separation pay orfinanial assistane! or whatever other na$e it is alled onthe ground of soial 5ustie.

"he poliy of soial 5ustie is not intended to ountenanewrongdoing si$ply #eause it is o$$itted #y theunderprivileged. At #est it $ay $itigate the penalty #ut itertainly will not ondone the offense. Co$passion for thepoor is an i$perative of every hu$ane soiety #ut onlywhen the reipient is not a rasal lai$ing an underservedprivilege. %oial 5ustie annot #e per$itted to #e refuge ofsoundrels any $ore than an e?uity #e an i$pedi$ent tothe punish$ent of the guilty. "hose who invo3e soial5ustive $ay do so only if their hands are lean and their$otives #la$eless and not si$ply #eause they happen to#e poor.

Aga#on v. 9L,C! 6 %C,A @*> (6;;)

E$ployees were lai$ing illegal dis$issal. E$ployer wasasserting that there was a#andon$ent.

A#andon$ent is the deli#erate and un5ustified refusal of ane$ployee to resu$e his e$ploy$ent. +t is a for$ of negletof duty! hene! a 5ust ause for ter$ination of e$ploy$ent#y the e$ployer. Kor a valid finding of a#andon$ent8 (')failure to report for wor3 or a#sene without valid or5ustifia#le reason (6) lear intention to server e$ployer0e$ployee relationship with the seond as the $oredeter$inative fator whih is $anifested #y overt ats fro$whih it $ay #e dedued that the e$ployees has no $oreintention to wor3.

We&(+ %r Be+#te* D.e 5r%'ess R.+e: where thee$ployer had a valid reason to dis$iss an e$ployee #ut didnot follow the due proess re?uire$ent! the dis$issal $ay#e upheld #ut the e$ployer will #e penalized to pay aninde$nity to the e$ployee.

But this was re0e2a$ined in Serr#&% '#se wherein theCourt re?uired that the e$ployer pay the full #a3wagesfro$ the ti$e of dis$issal until the ti$e the Court finds thedis$issal was for a 5ust or authorized ause. +t was #eauseof a signifiant nu$#er of ases involving dis$issals withoutre?uisite noties.

+n Aga#on! the Court a#andoned %errano and followed4enphil only that the santions i$posed on the e$ployer

$ust #e stiffer than those in 4enphil.

An e$ployee who is learly guilty of ondut violative ofArtile 66 should not #e proteted #y the %oial &ustieClause of the Constitution. %oial 5ustie! as the ter$ssuggests! should #e used only to orret an in5ustie.

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&P Laurel! in Calalang8 soial 5ustie $ust #e founded on thereognition of the neessity of interdependene a$ongdiverse units of a soiety and of the protetion that should#e e?ually and evenly e2tended to all groups as a o$#inedfor e in our soial and eono$i life! onsistent with thefunda$ental and para$ount o#5etive of the state ofpro$oting the health! o$fort and ?uiet of all person! and of#ringing a#out te /re#test /%%* t% te /re#test&.m$er"

%oial 5ustie is not #ased on rigid for$ulas set in stone. +thas to allow for hanging ti$es and iru$stanes.

@. Legal Basis

a. +nternational Conventions

+nternational %hool Alliane of Eduators v. uisu$#ing!>>> %C,A '> (6;;;)

Koreigner teahers were given $ore #enefits than the loalteahers.

+nternational law! whih springs fro$ general priniple oflaw! li3ewise prosri#es disri$ination. 1eneral priniples oflaw inlude priniples of e?uity i.e the general priniples offairness and 5ustie! #ased on the test of what is reasona#le.

"he following e$#ody the general priniple againstdisri$ination! the very antithesis of fairness and 5ustie.

Universal Delaration of u$an ,ights "he +nternational Covenant on

Eono$i! %oial! and Cultural ,ights "he +nternational Convention on the

Eli$ination of All Kor$s of ,aialDisri$ination

"he Convention against Disri$ination

in Eduation "he Convention Conerning

Disri$ination in ,espet of E$ploy$ent and /upation

entioned in the ase8B#r/#&&/ U&t: is a group of e$ployees of a givene$ployer! o$prised of all or less than all of the entire #odyof e$ployees! onsistent with e?uity to the e$ployerindiate to #e the #est suited to serve the reiproal rightsand duties of the parties under the olletive #argainingprovisions of the law.

"he fators deter$ining the appropriate olletive #argainingunit are8 (') the will of the e$ployees (6) affinity and unityof the e$ployeesG interest! suh as su#stantial si$ilarity of

wor3 and duties! or si$ilarity of o$pensation and wor3ingonditions (>) prior olletive #argaining history () si$ilarityof e$ploy$ent status.

#. '* Constitution! Art. ++! %es. @! ! ';! '>! '! '< Art.=+++! %es. '! >! '

ART. II

Section 5. The maintenance of peace and order, theprotection of life, liberty, and property, and promotionof the general welfare are essential for the enjoymentby all the people of the blessings of democracy.

Section 9. The State shall promote a just anddynamic social order that will ensure the prosperityand independence of the nation and free the peoplefrom poverty through policies that provide adequate

social services, promote full employment, a risingstandard of living, and an improved quality of life forall.

Section 10. The State shall promote social justice inall phases of national development.

Section 13. The State recogni(es the vital role of theyouth in nation-building and shall promote and protect

their physical, moral, spiritual, intellectual, and socialwell-being. !t shall inculcate in the youth patriotismand nationalism, and encourage their involvement inpublic and civic affairs.

Section 14. The State recogni(es the role of womenin nation-building, and shall ensure the fundamentalequality before the law of women and men.

Section 18. The State affirms labor as a primarysocial economic force. !t shall protect the rights ofwor)ers and promote their welfare.

Art. XIII

Section 1.The Congress shall give highest priority tothe enactment of measures that protect and enhancethe right of all the people to human dignity, reducesocial, economic, and political inequalities, andremove cultural inequities by equitably diffusingwealth and political power for the common good.

Section 3. The State shall afford full protection tolabor, local and overseas, organi(ed andunorgani(ed, and promote full employment andequality of employment opportunities for all.!t shall guarantee the rights of all wor)ers to self-organi(ation, collective bargaining and negotiations,and peaceful concerted activities, including the right

to stri)e in accordance with law. They shall be entitledto security of tenure, humane conditions of wor), anda living wage. They shall also participate in policy anddecision-ma)ing processes affecting their rights andbenefits as may be provided by law.

The State shall promote the principle of sharedresponsibility between wor)ers and employers andthe preferential use of voluntary modes in settlingdisputes, including conciliation, and shall enforce theirmutual compliance therewith to foster industrialpeace.

The State shall regulate the relations between

wor)ers and employers, recogni(ing the right of laborto its just share in the fruits of production and the rightof enterprises to reasonable returns to investments,and to e*pansion and growth.

Section 14.The State shall protect wor)ing womenby providing safe and healthful wor)ing conditions,ta)ing into account their maternal functions, and suchfacilities and opportunities that will enhance theirwelfare and enable them to reali(e their full potentialin the service of the nation.

%ee also8 '>@ Const.! Art. =+:! %e.! < '*> Const.! Art.++! %e.

1967 %&stt.t%&, Art" X!, Se'"

Section 6.The State shall afford protection to labor,especially to wor)ing women, and minors, and shallregulate the relations between the landowner and

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tenant, and between labor and capital in industry andin agriculture. The State may provide for compulsoryarbitration.

'*> Const. Art. ++! %e.

Section 9.The State shall afford protection to labor,promote full employment and equality in employment,ensure equal wor) opportunities regardless of se*,

race, or creed, and regulate the relation betweenwor)ers and employers. The State shall assure therights of wor)ers to self-organi(ation, collectivebargaining, security of tenure, and just and humaneconditions of wor). The State may provide forcompulsory arbitration.

. La#or Code (LC) and /$ni#us ,ules +$ple$enting the La#orCode

d. 9ew Civil Code of the Philippines (9CC)! Arts. '! 6'! '*;;0'*;'

Art. 19.#very person must, in the e*ercise of his

rights and in the performance of his duties, act withjustice, give everyone his due, and observe honestyand good faith.

Art. 21.Any person who wilfully causes loss or injuryto another in a manner that is contrary to morals,good customs or public policy shall compensate thelatter for the damage.

Art. 1700.The relations between capital and labor arenot merely contractual. They are so impressed withpublic interest that labor contracts must yield to thecommon good. Therefore, such contracts are subjectto the special laws on labor unions, collective

bargaining, stri)es and loc)outs, closed shop, wages,wor)ing conditions, hours of labor and similarsubjects.

Art. 1701. +either capital nor labor shall actoppressively against the other, or impair the interestor convenience of the public.

. %oures of Law

a. La#or Code and ,elated %peial Legislation (+$ple$enting,ules)

#. Contrat M Art. '>;@0'>;! 9ew Civil Code

Art. 1305.A contract is a meeting of minds betweentwo persons whereby one binds himself, with respectto the other, to give something or to render someservice. /0a1

Art. 1306.The contracting parties may establish suchstipulations, clauses, terms and conditions as theymay deem convenient, provided they are not contraryto law, morals, good customs, public order, or publicpolicy. //a1

. Colletive Bargaining Agree$ent

D/LE Phils. v. Pawis ng a3a#ayang /#rero! >@ %C,A ''6

(6;;>)

+nterpretation of the free $eals provision in the CBA. +s itafter the e$ployee has wor3ed only after $ore than threehours of wor3 or those who have rendered e2atly threehours of overti$e wor3

"he disputed provision of the CBA is lear and una$#iguous."he ter$s of the CBA is not susepti#le to any otherinterpretation. ene the literal $eaning of Hfree $eals afterthree (>) hours of overti$e wor3N shall prevail! whih issi$ply that an e$ployee shall #e entitled to a free $eal if hehas rendered e2atly! or no less than! three hours ofoverti$e wor3! not Hafter $ore thanN or Hin e2ess ofN threehours overti$e wor3.

Kound in the ase8 anage$ent prerogative8 "he e2erise of$anage$ent prerogative is not unli$ited. +t is su#5et to theli$itations found in law! a olletive #argaining agree$ent orthe general priniples of fair play and 5ustie. "his situationonstitutes one of the li$itations. "he CBA is the nor$ ofondut #etween the petitioner and private respondent ando$pliane therewith is $andated #y the e2press poliy ofthe law.

d. Past Praties

Davao Kruits Corporation v. Assoiatedla#or Union! 66@ %C,A @6 ('>)

+ssue8 4/9 in the o$putation of the '> th$onth pay given

#y e$ployers to their e$ployees under PD @'! pay$entsfor si3! vaation and $aternity leaves! pre$iu$s for wor3done rest days and speial holidays and pay for regularholidays $ay #e e2luded in the o$putation and pay$entthereof! regardless of long0standing o$pany pratie.

A '%m(#& (r#'t'e 4#;%r#$+e t% te em(+%ees #*&*ee* $ee& est#$+se* #&* te (#me&ts m#*e(.rs.#&t teret%, r(e&e* &t% $e&e4ts e&3%e* $

tem" A&* #& $e&e4t #&* s.((+eme&t $e&/ e&3%e*$ te em(+%ees '#&&%t $e re*.'e*, *m&se*,

*s'%&t&.e* %r e+mte* $ te em(+%er, $ ;rt.e%4 Se' 10 %4 te R.+es #&* Re/.+#t%&s !m(+eme&t&/5D 871 #&* Art 100 %4 te L#$%r %*e )' (r%$tte *m&.t%& %r e+mt%& $ te em(+%er %4 te

em(+%ees< est&/ $e&e4ts"

"he onsidera#le length of ti$e the ?uestioned ite$s had#een inluded #y petitioner indiates a unilateral andvoluntary at on its part! suffiient in itself to negate anylai$ of $ista3e.

%a$ahang anggagawa sa "op Kor$ anufaturing0United4or3ers of the Phil. (%"K0U4P v. 9L,C! 6@ %C,A '*'(')

"he ase wherein the e$ployer was harged as havingo$$itted an unfair la#or pratie #y #argaining in #ad faithand disri$inating against in e$ployees #y pro$ising at aolletive #argaining onferene to i$ple$ent anygovern$ent0$andated wage inreases on an aross0the0

#oard #asis.

Past pro$ises whih were written in the $inutes of the$eeting. "he proposal was never e$#odied in the CBA!thus! the pro$ise re$ained 5ust that! a pro$ise! thei$ple$entation whih annot #e validly de$anded under thelaw.

"he law provides re$edies to the petitioner union to o$pelpriv resp to inorporate this speifi eono$i proposal inthe CBA! whih they did not do.

"he CBA is the law #etween the ontrating partiesOtheolletive #argaining representative and the e$ployer0o$pany. Co$pliane with a CBA is $andated #y the

e2pressed poliy to give protetion to la#or. +n the sa$evein! CBA provision should #e Honstrued li#erally ratherthan narrowly and tehnially! and the ourts $ust plae apratial and realisti onstrution upon it! giving dueonsideration to the onte2t in whih it is negotiated andpurpose whih it is intended to serve. "his is founded on the

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ditu$ that a CBA is not an ordinary ontrat #ut onei$pressed with pu#li interest. +t goes without saying!however! that only provisions e$#odied in the CBA should#e so interpreted and o$plied with.

9o #enefits or privileges previously en5oyed #y petitionerunion and the other e$ployees were withdrawn as a resultof the $anner #y whih private resp i$ple$ented the wageorders.

A$erian 4ire and Ca#le Dailyrated E$ployees Union A$erian 4ire and Ca#le o.! +n.!@* %C,A (6;;@)

"he o$pany suddenly withdrew and denied ertain #enefitsand entitle$ents whih the e$ployees have long en5oyedli3e servie awards! >@ pre$iu$ pay of an e$ployeeGs#asi pay for wor3 rendered during oly onday! "uesday!4ednesday! Dee$#er 6>! 6! 6*! 6! and 6! Christ$asParty and Pro$otional +nreases.

+t is ritial that a deter$ination $ust #e first $ade whether

the #enefitsentitle$ents are in the nature of a #onus ornot! and assu$ing they are so! whether they arede$anda#le and enforea#le o#ligations.

B%&.s: is an a$ount granted and paid to an e$ployee forhis industry and loyalty whih ontri#uted to the suess ofthe e$ployerGs #usiness and $ade possi#le the realization ofprofits. +t is an at of generosity granted #y an enlightenede$ployer to spur the e$ployee to greater efforts for thesuess of the #usiness and realization of #igger profits. "hegranting of a #onus is a $anage$ent prerogative!so$ething given in addition to what is ordinarily reeived #yor stritly due the reipient. "hus! a #onus is not ade$anda#le and enforea#le o#ligation! e2ept when it is$ade part of the wage! salary or o$pensation of thee$ployee.

+ssue8 4/9 these #onuses an #e onsidered part of thewage or salary or o$pensation $a3ing the$ enforea#leo#ligations.

eld8 9o. Kor a #onus to #e enforea#le! it $ust have #eenpro$ised #y the e$ployer and e2pressly agreed upon #y theparties or it $ust have had a fi2ed a$ount and had #een along and regular pratie on the part of the e$ployer.

"he #enefitsentitle$ents in ?uestion were never su#5ets ofany e2press agree$ent #etween the parties. "hey werenever inorporated in the CBA. As o#served #y the :A! thereords reveal that these #enefitsentitle$ents have not#een su#5ets of any e2press agree$ent #etween the union

and the o$pany! and have not yet #een inorporated in theCBA.

Downtrend was lear in the servie award a$ount and thepartiesG venue were hanged fro$ paid venues to one whihwas free of harge.

T% $e '%&s*ere* # =re/.+#r (r#'t'e>, te /;&/ %4te $%&.s s%.+* #;e $ee& *%&e %;er # +%&/ (er%*%4 tme, #&* m.st $e s%)& t% #;e $ee& '%&sste&t#&* *e+$er#te"

e. Co$pany Poliies

China Ban3ing Corporation v.

Borro$eo! ; %C,A 6' (6;;)

"he ase of a $anager who was onsistently pro$oted#eause of a highly satisfatory perfor$ane whih landedhi$ at the A:P spot only to find out that he has done

irregularities in approving several DAUDBP in favor of oneaniwan.

"he Ban3Gs %/P provides a restitutionforfeiture of #enefitsprovision.

+t is well reognized that o$pany poliies and regulationsare! unless shown to #e grossly oppressive or ontrary tolaw! generally #inding! and valid on the parties and $ust #eo$plied with until finally revised or a$ended unilaterally or

prefera#ly through negotiation or #y o$petent authority.oreover! $anage$ent has the prerogative to disipline itse$ployees and to i$pose appropriate penalties on erringwor3ers pursuant to o$pany rules and regulations. 4ith$ore reason should these truis$s apply to the respondent!who! #y reason of his position! was re?uired to at5udiiously and to e2erise his authority in har$ony witho$pany poliies.

Business enterprises have a prerogative to disipline itse$ployees and to i$pose appropriate penalties on erringwor3ers pursuant to o$pany rules and regulations whih$ust #e respeted. "he law! in proteting the rights of la#or!authorized neither oppression nor self0destrution of ane$ployer o$pany whih itself is possessed of rights that

$ust #e entitled to reognition and respet.

*. Classifiation

a. La#or %tandards

#. La#or ,elations

. 4elfare Legislation

!!" LABOR ODE OF T?E 5?!L!55!NES

A" Bre4 ?st%r

B" Ge&er#+ 5r%;s%&s

'. '. Deree "itle! Art. '

AT!C"# . Name of Decree.- This 2ecree shallbe )nown as the"Labor Code of the Philippines".

6. Effetivity! Art. 6AT. . Date of effectivity.- This Code shall ta)eeffect si* 31 months after its promulgation.>. Poliy Delaration! Art. >

AT. 4. Declaration of basic policy.- The Stateshall afford protection to labor, promote fullemployment, ensure equal wor) opportunitiesregardless of se*, race or creed and regulate the

relations between wor)ers and employers. TheState shall assure the rights of wor)ers to self-organi(ation, collective bargaining, security oftenure, and just and humane conditions of wor).

. Constrution in Kavor of La#or! Art.

AT. 0. Construction in favor of labor.- All doubtsin the implementation and interpretation of theprovisions of this Code, including itsimplementing rules and regulations, shall beresolved in favor of labor.

%alinas &r. v. 9L,C! >' %C,A @

(')



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,eyes v. Court of Appeals! ;%C,A 6* (6;;>)

1- Philippines! +n. v. ,o$ilCua$#ot! 1, 9o. '6>;! 9ov. 66! 6;;

,ule a3ing Power! Art. @

AT. /. Rules and regulations.- The 2epartmentof "abor and other government agencies chargedwith the administration and enforcement of thisCode or any of its parts shall promulgate thenecessary implementing rules and regulations.Such rules and regulations shall becomeeffective fifteen /1 days after announcement oftheir adoption in newspapers of general

circulation.

Qapisanan ng $ga anggagawangPinagya3ap v. 9L,C! '@6 %C,A ('*)

>. "ehnial ,ules 9ot Binding! Art. 66'

AT. . Technical rules not binding and prior resortto amicable settlement.- !n any proceeding before theCommission or any of the "abor Arbiters, the rules ofevidence prevailing in courts of law or equity shall notbe controlling and it is the spirit and intention of thisCode that the Commission and its members and the"abor Arbiters shall use every and all reasonablemeans to ascertain the facts in each case speedily

and objectively and without regard to technicalities oflaw or procedure, all in the interest of due process. !nany proceeding before the Commission or any "aborArbiter, the parties may be represented by legalcounsel but it shall be the duty of the Chairman, any5residing Commissioner or Commissioner or any"abor Arbiter to e*ercise complete control of theproceedings at all stages.

untington %teel Produts! +n. v. 9L,C! 6 %C,A @@'(6;;)

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Applia#ility! Art. ! 6*< Constitution! Art.+=0B! %e. 6(')

AT. 3. Applicability. - All rights and benefits grantedto wor)ers under this Code shall, e*cept as mayotherwise be provided herein, apply ali)e to all

wor)ers, whether agricultural or non-agricultural. Asamended by 5residential 2ecree +o. /67-A,+ovember , 8601.

AT. 63. overnment employees.- The terms andconditions of employment of all governmentemployees, including employees of government-owned and controlled corporations, shall be governedby the Civil Service "aw, rules and regulations. Theirsalaries shall be standardi(ed by the +ationalAssembly as provided for in the +ew Constitution.9owever, there shall be no reduction of e*istingwages, benefits and other terms and conditions ofemployment being enjoyed by them at the time of the

adoption of this Code.

%&stt.t%&, Art" !X-B, Se'" 2@1

Section 2. (1) The civil service embraces allbranches, subdivisions, instrumentalities, andagencies of the :overnment, including government-owned or controlled corporations with originalcharters.

@. Enfore$ent and %antions M Arts. 6'* (a)(6)! (>)! ()! ()< '60'6< 6066< Consti.! Art +++! %es.'' and '

AT. 6. !urisdiction of the Labor Arbiters and the

Commission. - a1 #*cept as otherwise providedunder this Code, the "abor Arbiters shall have originaland e*clusive jurisdiction to hear and decide, withinthirty 471 calendar days after the submission of thecase by the parties for decision without e*tension,even in the absence of stenographic notes, thefollowing cases involving all wor)ers, whetheragricultural or non-agricultural;

. Termination disputes81.

AT. >>. Penalties.- #*cept as otherwise providedin this Code, or unless the acts complained of hingeon a question of interpretation or implementation ofambiguous provisions of an e*isting collectivebargaining agreement, any violation of the provisionsof this Code declared to be unlawful or penal in natureshall be punished with a fine of not less than 'neThousand 5esos 5,777.771 nor more than TenThousand 5esos 57,777.771 or imprisonment of notless than three months nor more than three years, orboth such fine and imprisonment at the discretion ofthe court.

!n addition to such penalty, any alien found guilty shallbe summarily deported upon completion of service ofsentence.

Any provision of law to the contrary notwithstanding,any criminal offense punished in this Code, shall be

under the concurrent jurisdiction of the =unicipal orCity Courts and the Courts of irst !nstance. Asamended by Section 4, &atas 5ambansa &ilang 671.

AT. >8. %ho are liable #hen committed by otherthan natural person.- !f the offense is committed by acorporation, trust, firm, partnership, association or anyother entity, the penalty shall be imposed upon theguilty officer or officers of such corporation, trust, firm,partnership, association or entity.

Title !!5#SC!5T!'+ ' '#+S#S A+2 C"A!=S

AT. 87. &ffenses.- 'ffenses penali(ed under thisCode and the rules and regulations issued pursuantthereto shall prescribe in three 41 years.

All unfair labor practice arising from &oo) D shall befiled with the appropriate agency within one 1 yearfrom accrual of such unfair labor practice< otherwise,they shall be forever barred.

AT. 8.'oney claims.- All money claims arisingfrom employer-employee relations accruing during theeffectivity of this Code shall be filed within three 41years from the time the cause of action accrued* (';)

Perpetual elp Credit v. Ka#urada et al.! >%C,A > (6;;')

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:iente %y v. Court of Appeals! > %C,A >;'(6;;>)

Chavez v. 9L,C! %C,A * (6;;@)

Angelina Kraniso v. 9L,C! et al.! 1, 9o.'*;;*! Aug. >'! 6;;

. Piering the Corporate :eil

Pa$plona Plantatin Co.! +n. v."inghil! @; %C,A 6' (6;;@)

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6. +ndependent Contrator and La#or0only Contrator! Art. ';0';*! ';< D/ 9o. '0;6! % 6;;6

AT. 73. Contractor or subcontractor. - henever anemployer enters into a contract with another personfor the performance of the former?s wor), theemployees of the contractor and of the latter?s

subcontractor, if any, shall be paid in accordance withthe provisions of this Code.

!n the event that the contractor or subcontractor failsto pay the wages of his employees in accordance withthis Code, the employer shall be jointly and severallyliable with his contractor or subcontractor to suchemployees to the e*tent of the wor) performed underthe contract, in the same manner and e*tent that he isliable to employees directly employed by him.

The Secretary of "abor and #mployment may, byappropriate regulations, restrict or prohibit thecontracting-out of labor to protect the rights of wor)ers

established under this Code. !n so prohibiting orrestricting, he may ma)e appropriate distinctionsbetween labor-only contracting and job contracting aswell as differentiations within these types ofcontracting and determine who among the partiesinvolved shall be considered the employer forpurposes of this Code, to prevent any violation orcircumvention of any provision of this Code.

There is "labor*only"contracting where the personsupplying wor)ers to an employer does not havesubstantial capital or investment in the form of tools,equipment, machineries, wor) premises, amongothers, and the wor)ers recruited and placed by such

person are performing activities which are directlyrelated to the principal business of such employer. !nsuch cases, the person or intermediary shall beconsidered merely as an agent of the employer whoshall be responsible to the wor)ers in the samemanner and e*tent as if the latter were directlyemployed by him.

AT. 76. (ndirect employer.- The provisions of theimmediately preceding article shall li)ewise apply toany person, partnership, association or corporationwhich, not being an employer, contracts with anindependent contractor for the performance of anywor), tas), job or project.

E#ART$ENT !RER N!. 18 % 02(Serie& o' 2002)

.

.

R"ES I$#E$ENTIN ARTICES 106 T! 109!* T+E A!R C!E, AS A$ENE

..

- irt/e o' te oer e&te in te Secretr- o'or n Eo-ent /ner Artice& 5 (R/e%in) n 106 (Contrctor or S/contrctor) o'te or Coe o' te #iiine&, & ene,te 'ooin re/tion& oernin contrctin

n &/contrctin rrneent& re ere-i&&/e:Section 1. Guiding principles. % Contrctin n&/contrctin rrneent& re e;re&&-oe - n re &/


13/151

() "rincipal" re'er& to n- eo-er o /t&o/t or 'r& o/t

(c) Tin /n/e nte o' te econoic&it/tion or c o' rinin &trent o' tecontrct/ eo-ee, or /nerinin i&

&ec/rit- o' ten/re or &ic rit&, orcirc/entin te roi&ion& o' re/reo-ent, in n- o' te 'ooin in&tnce&:

(i) In ition to i& &&ine '/nction&, re?/irinte contrct/ eo-ee to er'or '/nction&ic re c/rrent- ein er'ore - tere/r eo-ee& o' te rinci or o' tecontrctor or &/contrctor>

(ii) Re?/irin i to &in, & reconition toeo-ent or contin/e eo-ent, nntete re&intion etter> n -ro> ier o' or &tnr& inc/in ini/e& n &oci or e're ene'it&> or ?/itci ree&in te rinci, contrctor or&/contrctor 'ro n- iiit- & to -ent o''/t/re ci&> n

(iii) Re?/irin i to &in contrct 'i;in teerio o' eo-ent to ter &orter tn teter o' te contrct eteen te rinci n te

contrctor or &/contrctor, /ne&& te ttercontrct i& ii&ie into &e& 'or ic&/&tnti- i''erent &i& re re?/ire n ti&i& e non to te eo-ee t te tie o'eneent>

() Contrctin o/t o'


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contrct/ eo-ee & e entite to terit& n riiee& /e re/r eo-ee &roie 'or in te or Coe, & ene, toinc/e te 'ooin:() S'e n et'/ orin conition&>() or &tnr& &/c & &erice incentieee, re&t -&, oertie -, oi- -, 13tont - n &ertion ->(c) Soci &ec/rit- n e're ene'it&>

() Se'%orni=tion, coectie rinin nece'/ concerte ction> n(e) Sec/rit- o' ten/re.Section 9. Contract bet$een contractor orsubcontractor and contractual employee. %Notit&tnin or or ritten &ti/tion& to tecontrr-, te contrct eteen te contrctor or&/contrctor n te contrct/ eo-ee,ic & e in ritin, & inc/e te'ooin ter& n conition&:() Te &eci'ic e&crition o' te n

(c) Te ter or /rtion o' eo-ent, ic& e coe;ten&ie it te contrct o' terinci n &/contrctor, or it te &eci'ic&e 'or ic te contrct/ eo-ee i&ene, & te c&e - e.

Te contrctor or &/contrctor & in'or tecontrct/ eo-ee o' te 'oreoin ter& nconition& on or e'ore te 'ir&t - o' i&eo-ent.

Section 10. ffect of Termination of Contractualmployment. - In c&e& o' terintion o'eo-ent rior to te e;irtion o' te contrcteteen te rinci n te contrctor or&/contrctor, te rit o' te contrct/eo-ee to &ertion - or oter reteene'it& & e oerne - te ice &n

() Te n/er o' re/r orer&> te i&t o'cient&, i' n-> te n/er o' er&onne &&ineto ec cient, i' n- n te &erice& roie tote cient>

(e) Te e&crition o' te &e& o' te contrct

n te n/er o' eo-ee& coere in ec&e, ere rorite> n

(') A co- o' /ite 'innci &tteent& i' teicnt i& corortion, rtner&i,cooertie or /nion, or co- o' te te&t ITR i'te icnt i& &oe rorietor&i.

Te iction & e &/orte -:() A certi'ie co- o' certi'icte o' rei&trtiono' 'ir or /&ine&& ne 'ro te Sec/ritie& nE;cne Coi&&ion (SEC), ertent o'Tre n In/&tr- (TI), Cooertieeeoent A/torit- (CA), or 'ro te !E i'

te icnt i& /nion> n

() A certi'ie co- o' te icen&e or /&ine&&erit i&&/e - te oc oernent /nit or/nit& ere te contrctor or &/contrctoroerte&.

Te iction & e eri'ie n & inc/en /nertin tt te contrctor or&/contrctor & ie - ice or& n re/tion&.

Section 13. &iling and processing of applications.

% Te iction n it& &/ortin oc/ent&& e 'ie in triicte in te Reion !''ice&ere te icnt rinci- oerte&. Noiction 'or rei&trtion & e ccete/ne&& te 'oreoin re?/ireent& re

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coie it. Te contrctor or &/contrctor& e eee rei&tere /on -ent o' rei&trtion 'ee o' #100.00 to te Reion !''ice.

ere te &/ortin oc/ent& e een&/itte, te Reion !''ice & en- orroe te iction itin &een (7) orin-& 'ter it& 'iin.

"on rei&trtion, te Reion !''ice & ret/rnone &et o' te /-%&te ictionoc/ent& to te icnt, retin one &et 'or it&'ie, n trn&it te reinin &et to te /re/o' oc Eo-ent. Te /re/ & ei&e tenece&&r- 'or& 'or te e;eitio/& roce&&ino' iction& 'or rei&trtion.

Section 14. Duty to produce copy of contractbet$een the principal and the contractor orsubcontractor. -Te rinci or te contrctor or&/contrctor & e /ner n oition toro/ce co- o' te contrct eteen te

rinci n te contrctor in te orinr-co/r&e o' in&ection. Te contrctor &iei&e e /ner n oition to ro/ce co-o' te contrct o' eo-ent o' te contrct/orer en irecte to o &o - te Reionirector or i& /tori=e rere&enttie.

A co- o' te contrct eteen te contrct/eo-ee n te contrctor or &/contrctor& e '/rni&e te certi'ie rinin ent,i' tere i& n-.

Section 15. Annual Reporting of RegisteredContractors. % Te contrctor or &/contrctor

& &/it in triicte it& nn/ reort /&in re&crie 'or to te rorite Reion!''ice not ter tn te 15t o' n/r- o' te'ooin -er. Te reort & inc/e:

() A i&t o' contrct& entere it te rinci/rin te &/

() Te n/er o' orer& coere - eccontrct it te rinci>

(c) A &orn /nertin tt te ene'it& 'ro teSoci Sec/rit- S-&te (SSS), te +oe

eeoent $/t/ */n (+$*), #i+et,Eo-ee& Coen&tion Coi&&ion (ECC),n reittnce& to te /re/ o' Intern Reen/e(IR) /e it& contrct/ eo-ee& e eene /rin te &/

(c) *inin& tro/ ritrtion tt tecontrctor or &/contrctor & ene in or%

on- contrctin n te roiite ctiitie& &roie in Section 6 (#roiition&) ereo'> n

() Non%coince it or &tnr& norin conition&.

Section 17. Rene$al of registration of contractorsor subcontractors. % A rei&tere contrctor& or&/contrctor& - - 'or rene o'rei&trtion eer- tree -er&. *or ti& /ro&e,te Trirtite In/&tri #ece Co/nci (TI#C) &crete /ner E;ec/tie !rer No. 49, & &ere& te oer&it coittee to eri'- n onitorte 'ooin:

() Enin in oe contrctin ctiitie&>n

() Coince it ini&trtie reortinre?/ireent&.

Section 18. nforcement of 'abor !tandards and(or)ing Conditions. % Con&i&tent it Artice 128(@i&itori n En'orceent #oer) o' te orCoe, & ene, te Reion irector tro/i& /- /tori=e rere&enttie&, inc/inor re/tion o''icer& & e te /torit-to con/ct ro/tine in&ection o' e&ti&ent&ene in contrctin or &/contrctin n& e cce&& to eo-erB& recor& nrei&e& t n- tie o' te - or nit eneeror i& ein /nerten terein, n te rit toco- tere'ro, to ?/e&tion n- eo-ee nine&tite n- 'ct, conition or tter ic- e nece&&r- to eterine iotion& oric - i in te en'orceent o' te orCoe n o' n- or , e orer, or r/e&n re/tion& i&&/e /r&/nt tereto.

Te 'inin& o' te /- /tori=e rere&enttie& e re'erre to te Reion irector 'orrorite ction & roie 'or in Artice 128,n & e '/rni&e te coectie rininent, i' n-.

&e on te i&itori n en'orceent oer o'te Secretr- o' or n Eo-ent in Artice128 (), (), (c) n (), te Reion irector &i&&/e coince orer& to ie e''ect to te or&tnr& roi&ion& o' te or Coe, oteror ei&tion n te&e /ieine&.

Section 19. !olidary liability. % Te rinci &e eee & te irect eo-er o' tecontrct/ eo-ee& n tere'ore, &oiri-ie it te contrctor or &/contrctor 'or

teer onetr- ci& te contrct/eo-ee& - e in&t te 'orer in tec&e o' iotion& & roie 'or in Section& 5(or%!n- contrctin), 6 (#roiition&), 8(Rit& o' Contrct/ Eo-ee&) n 16

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(ei&tin) o' te&e R/e&. In ition, terinci & &o e &oiri- ie in c&e tecontrct eteen te rinci n contrctor or&/contrctor i& reterinte 'or re&on& notttri/te to te '/t o' te contrctor or&/contrctor.

Section 20. !upersession. % A r/e& nre/tion& i&&/e - te Secretr- o' or nEo-ent incon&i&tent it te roi&ion& o'ti& R/e re ere- &/er&ee. Contrctin or&/contrctin rrneent& in te con&tr/ctionin/&tr-, /ner te icen&in coere o' te#CA n & not inc/e &i/iin n &ireirin or&, oeer, & contin/e to eoerne - ertent !rer No. 19, &erie& o'1993.

Section 21. ffectivity. % Ti& !rer & ee''ectie 'i'teen (15) -& 'ter coetion o' it&/iction in to (2) ne&er& o' enercirc/tion.

.$ni, #iiine&, 21 *er/r- 2002.

a. ,e?uire$ents for +ndependent Contrator

%an iguel Corp v. 9L,C - ali3si!1, 9o. '*@! De. ! 6;;

L++QA0PPB v. Burlingga$e orp.!1, 9o. '6>>! &une '@! 6;;*

#. Desira#le M Unneessary

Coa0Cola Bottlers Phil.! +n. v.9L,C! >;* %C,A '>' (')

. La#or Contrator /nly< ,e?uisites andProhi#ition

anila 4ater Co.! +n. v. Pena! >%C,A @6 (6;;)

Du$an La#or + Prof. Battad Page '


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d. Effet of Kinding

%an iguel Corporation v. A#ella!' %C,A >6 (6;;@)

>. Lia#ility of +ndiret E$ployer

Lanzaderas v. A$ethyst %eurity -1eneral %ervies! +n.! supra

D" 5re-em(+%me&t, Re'r.tme&t #&* 5+#'eme&t %4W%rers

,eferene8 Arts. '606< P/EA ,ules< Boo3 '! ,ules +++0:+++!/$ni#us ,ules< igrant 4or3ers and /verseas Kilipinos Atof '@ (,A ;6)< Anti0"raffi3ing in Persons At 6;;> (,A6;) and ,ules and ,egulations +$ple$enting ,A 6;

'. Pre0e$ploy$ent Poliy M %tate$ent of /#5etives!Art. '6 (a) (f) () (d)! '6 (f)! '(a)

AT. 4. c1 "Private fee*chargingemployment agency"means any person orentity engaged in recruitment and placement

of wor)ers for a fee which is charged,directly or indirectly, from the wor)ers oremployers or both.

d1 "License"means a document issued bythe 2epartment of "abor authori(ing aperson or entity to operate a privateemployment agency.

AT. . +tatement of ob,ectives. - !t is thepolicy of the State;

f1 To strengthen the networ) of public

employment offices and rationali(e theparticipation of the private sector in therecruitment and placement of wor)ers,locally and overseas, to serve nationaldevelopment objectives (e) (f)! '6 (f)! '(a)

AT. 4. e1 "Private recruitment entity"means any person or association engaged inthe recruitment and placement of wor)ers,locally or overseas, without charging, directlyor indirectly, any fee from the wor)ers or

employers.

f1 "Authority"means a document issued bythe 2epartment of "abor authori(ing aperson or association to engage inrecruitment and placement activities as aprivate recruitment entity.

AT. . +tatement of ob,ectives. - !t is thepolicy of the State;

f1 To strengthen the networ) of publicemployment offices and rationali(e the

participation of the private sector in therecruitment and placement of wor)ers,locally and overseas, to serve nationaldevelopment objectives. Capitali/ation. - All applicants forauthority to hire or renewal of license torecruit are required to have such substantialcapitali(ation as determined by the Secretaryof "abor.

AT. 8. Non*transferability of license orauthority. - +o license or authority shall beused directly or indirectly by any personother than the one in whose favor it was

Du$an La#or + Prof. Battad Page 6;


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issued or at any place other than that statedin the license or authority be transferred,conveyed or assigned to any other person orentity. Any transfer of business address,appointment or designation of any agent orrepresentative including the establishment ofadditional offices anywhere shall be subjectto the prior approval of the 2epartment of"abor.

AT. 47. Registration fees.- The Secretaryof "abor shall promulgate a schedule of feesfor the registration of all applicants forlicense or authority.

AT. 4. onds.- All applicants for license orauthority shall post such cash and suretybonds as determined by the Secretary of"abor to guarantee compliance withprescribed recruitment procedures, rules andregulations, and terms and conditions ofemployment as may be appropriate.

#!EA R/e&, oo II,ICENSIN AN RE"ATI!N

R"E I#ARTICI#ATI!N !* T+E #RI@ATE SECT!R IN T+E

!@ERSEAS E$#!D$ENT #R!RA$

Section . Lualifications. 'nly those whopossess the following qualifications may bepermitted to engage in the business ofrecruitment and placement of ilipinowor)ers;

a. ilipino citi(ens, partnerships orcorporations at least seventy five percent6/K1 of the authori(ed capital stoc) ofwhich is owned and controlled by ilipinociti(ens. Non*e4piration of License. *here the license holder has made timelyand sufficient application for renewal, thee*isting license shall not e*pire until theapplication shall have been finally

determined by the Administration.

Section 8. Action on Rene#al of License. -ithin thirty 471 calendar days from receiptof the application for renewal theAdministration shall underta)e evaluationand inspection and thereafter recommend tothe Secretary the grant or denial of theapplication.

Section 7. 1ailure to Rene#. *Any agencywhich fails to obtain a renewal of its licensewithin thirty 471 calendar days frome*piration thereof, shall be immediatelydeemed delisted and disallowed fromconducting recruitment and placement.

Section . Denial of Rene#al of Licenses.- "icenses of agencies which fail to concludea recruitment or manning agreement andHorunderta)e minimum levels of wor)erdeployment and foreign e*changegeneration or those which fail to meet theminimum operational standards andrequirements set by the Administration, shallnot be renewed.

Section . %hen to Consider Cashond2Deposit in )scro# arnished.- Assoon as an 'rder of :arnishment is servedupon the AdministrationH&an), and the sameis correspondingly earmar)ed, the cashbondHdeposit in escrow of an agency shall nolonger be considered sufficient. TheAdministration shall forthwith serve upon theagency a notice to replenish.

Section 4. Replenishment of Cash or+urety onds2Deposit in )scro#. * ithinfifteen /1 calendar days from date ofreceipt of notice from the Administration that

the bondsHdeposit in escrow, or any partthereof had been garnished, the agencyshall replenish the same. ailure toreplenish such bondsHdeposit in escrowwithin the said period shall cause thesuspension of the license.



25/151

Section 0. Refund of Cash ond2Releaseof Deposit in )scro#. - A licensed agencywhich voluntarily surrenders its license shallbe entitled to the refund of its deposited cashbond and release of the deposit in escrow,only after posting a surety bond of similaramount valid for four 01 years frome*piration of license.

Section /. )valuation of Performance ofAgencies. * The Administration shallunderta)e the annual evaluation and ratingof the performance of licensed agencies todetermine the merits of their continuedparticipation in the overseas employmentprogram ta)ing into considerationcompliance with laws and regulations andsuch other criteria as it may deem proper.

Section 3. Classification and Ran-ing. *The Administration may underta)e theclassification and ran)ing of agencies. !nrecognition of e*emplary performance, itmay underta)e schemes for incentives andrewards.

6) 4or3ersG Kees! Art. >6

AT. 4. 1ees to be paid by #or-ers.- Anyperson applying with a private fee-chargingemployment agency for employmentassistance shall not be charged any fee untilhe has obtained employment through itsefforts or has actually commencedemployment. Such fee shall be alwayscovered with the appropriate receipt clearly

showing the amount paid. The Secretary of"abor shall promulgate a schedule ofallowable fees.

>) ,eportsE$ploy$ent +nfor$ation! Arts. >>! ' (d)

AT. 44. Reports on employment status.-henever the public interest requires, theSecretary of "abor may direct all persons orentities within the coverage of this Title tosubmit a report on the status of employment,including job vacancies, details of jobrequisitions, separation from jobs, wages,other terms and conditions and other

employment data.

AT. 0.)mployment promotion. - TheSecretary of "abor shall have the power andauthority;

d1 To require any person, establishment,organi(ation or institution to submit suchemployment information as may beprescribed by the Secretary of "abor.

) Prohi#ited Praties! Art. >

AT. 40. Prohibited practices. - !t shall beunlawful for any individual, entity, licensee,or holder of authority;

a1 To charge or accept, directly or indirectly,any amount greater than that specified in theschedule of allowable fees prescribed by theSecretary of "abor, or to ma)e a wor)er payany amount greater than that actuallyreceived by him as a loan or advance. (llegal recruitment. - a1 Anyrecruitment activities, including the prohibitedpractices enumerated under Article 40 of thisCode, to be underta)en by non-licensees ornon-holders of authority, shall be deemedillegal and punishable under Article 48 of thisCode. The 2epartment of "abor and#mployment or any law enforcement officermay initiate complaints under this Article.

b1 !llegal recruitment when committed by asyndicate or in large scale shall beconsidered an offense involving economicsabotage and shall be penali(ed inaccordance with Article 48 hereof.

!llegal recruitment is deemed committed by asyndicate if carried out by a group of three41 or more persons conspiring andHorconfederating with one another in carryingout any unlawful or illegal transaction,enterprise or scheme defined under the firstparagraph hereof. !llegal recruitment isdeemed committed in large scale ifcommitted against three 41 or more personsindividually or as a group.

c1 The Secretary of "abor and #mploymentor his duly authori(ed representatives shallhave the power to cause the arrest anddetention of such non-licensee or non-holderof authority if after investigation it isdetermined that his activities constitute adanger to national security and public orderor will lead to further e*ploitation of job-see)ers. The Secretary shall order thesearch of the office or premises and sei(ureof documents, paraphernalia, properties andother implements used in illegal recruitmentactivities and the closure of companies,establishments and entities found to beengaged in the recruitment of wor)ers foroverseas employment, without having beenlicensed or authori(ed to do so.

) Enfore$ent

a) ,egulatory Power! Art. >

AT. 43. Regulatory po#er. - The Secretaryof "abor shall have the power to restrict andregulate the recruitment and placementactivities of all agencies within the coverageof this Title and is hereby authori(ed to issueorders and promulgate rules and regulationsto carry out the objectives and implement theprovisions of this Title.

#) ,ule0a3ing Power! Art. >

) :isitorial Power! Art. >*

AT. 46. isitorial Po#er. - The Secretary of"abor or his duly authori(ed representativesmay, at any time, inspect the premises,boo)s of accounts and records of any personor entity covered by this Title, require it tosubmit reports regularly on prescribed forms,

and act on violation of any provisions of thisTitle.

*) &oint and %everal Lia#ility of Agent and Prinipal! P/EA,ules! Boo3 ++! ,ule ++! %e. ' (f)

Section . Re0uirements for (ssuance ofLicense. - #very applicant for license tooperate a private employment agency ormanning agency shall submit a writtenapplication together with the followingrequirements;

f. A verified underta)ing stating that theapplicant;

1 Shall select only medically and technicallyqualified recruits1 years of age or committed by a non-licensee or non-holder of authority.

S#C. 7. ='+#I C"A!=S. - +otwithstanding anyprovision of law to the contrary, the "abor Arbiters ofthe +ational "abor elations Commission +"C1shall have the priginal and e*clusive jurisdiction tohear and decide, within ninety 871 calendar daysafter filing of the complaint, the claims arising out ofan employer-employee relationship or by virtue of anylaw or contract involving ilipino wor)ers for overseasdeployment including claims for actual, moral,e*emplary and other forms of damages.

The liability of the principalHemployer andthe recruitmentHplacement agency for any and allclaims under this section shall be joint and several.This provisions shall be incorporated in the contractfor overseas employment and shall be a conditionprecedent for its approval. The performance bond to



30/151

be filed by the recruitmentHplacement agency, asprovided by law, shall be answerable for all moneyclaims or damages that may be awarded to thewor)ers. !f the recruitmentHplacement agency is ajuridical being, the corporate officers and directorsand partners as the case may be, shall themselves bejointly and solidarily liable with the corporation orpartnership for the aforesaid claims and damages.

Such liabilities shall continue during theentire period or duration of the employment contractand shall not be affected by any substitution,amendment or modification made locally or in aforeign country of the said contract.

Any compromiseHamicable settlement orvoluntary agreement on money claims inclusive ofdamages under this section shall be paid within four01 months from the approval of the settlement by theappropriate authority.

!n case of termination of overseasemployment without just, valid or authori(ed cause asdefined by law or contract, the wor)ers shall beentitled to the full reimbursement of his placement feewith interest of twelve percent K1 per annum, plushis salaries for the une*pired portion of hisemployment contract or for three 41 months for everyyear of the une*pired term, whichever is less.

+on-compliance with the mandatory periodsfor resolutions of cases provided under this sectionshall subject the responsible officials to any or all ofthe following penalties;

a1 The salary of any such official who failsto render his decision or resolutions within theprescribed period shall be, or caused to be, withhelduntil the said official complies therewith;


31/151

ensure their recovery, rehabilitation andreintegration into the mainstream of society.

!t shall be a State policy to recogni(e the equalrights and inherent human dignity of women andmen as enshrined in the Bnited +ationsBniversal 2eclaration on 9uman ights, Bnited+ations Convention on the ights of the Child,

Bnited +ations Convention on the 5rotection of=igrant or)ers and their amilies. Bnited+ations Convention Against Transnational'rgani(ed Crime !ncluding its 5rotocol to5revent, Suppress and 5unish Traffic)ing in5ersons, #specially omen and Children andall other relevant and universally acceptedhuman rights instruments and other internationalconventions to which the 5hilippines is asignatory.

Section 3. Definition of Terms.- As used in thisAct;

a1 Traffic-ing in Persons- refers to therecruitment, transportation, transfer orharboring, or receipt of persons with orwithout the victimJs consent or)nowledge, within or across nationalborders by means of threat or use offorce, or other forms of coercion,abduction, fraud, deception, abuse ofpower or of position, ta)ing advantageof the vulnerability of the person, or, thegiving or receiving of payments or

benefits to achieve the consent of aperson having control over anotherperson for the purpose of e*ploitationwhich includes at a minimum, thee*ploitation or the prostitution of othersor other forms of se*ual e*ploitation,forced labor or services, slavery,servitude or the removal or sale oforgans.

The recruitment, transportation, transfer,harboring or receipt of a child for thepurpose of e*ploitation shall also be

considered as Mtraffic)ing in personsMeven if it does not involve any of themeans set forth in the precedingparagraph.

b1 Child- refers to a person beloweighteen >1 years of age or one who isover eighteen >1 but is unable to fullyta)e care of or protect himselfHherselffrom abuse, neglect, cruelty,e*ploitation, or discrimination becauseof a physical or mental disability orcondition.

c1 Prostitution - refers to any act,transaction, scheme or design involvingthe use of a person by another, for

se*ual intercourse or lascivious conductin e*change for money, profit or anyother consideration.

d1 1orced Labor and +lavery- refer tothe e*traction of wor) or services fromany person by means of enticement,violence, intimidation or threat, use of

force or coercion, including deprivationof freedom, abuse of authority or moralascendancy, debt-bondage ordeception.

e1 +e4 Tourism- refers to a programorgani(ed by travel and tourism-relatedestablishments and individuals whichconsists of tourism pac)ages oractivities, utili(ing and offering escortand se*ual services as enticement fortourists. This includes se*ual servicesand practices offered during rest andrecreation periods for members of themilitary.

f1 +e4ual )4ploitation- refers toparticipation by a person in prostitutionor the production of pornographicmaterials as a result of being subjectedto a threat, deception, coercion,abduction, force, abuse of authority,debt bondage, fraud or through abuse ofa victimJs vulnerability.

g1 Debt ondage- refers to thepledging by the debtor of hisHherpersonal services or labor or those of aperson under hisHher control as securityor payment for a debt, when the lengthand nature of services is not clearlydefined or when the value of theservices as reasonably assessed is notapplied toward the liquidation of thedebt.

h1 Pornography- refers to anyrepresentation, through publication,

e*hibition, cinematography, indecentshows, information technology, or bywhatever means, of a person engagedin real or simulated e*plicit se*ualactivities or any representation of these*ual parts of a person for primarilyse*ual purposes.

i1 Council- shall mean the !nter-AgencyCouncil Against Traffic)ing createdunder Section 7 of this Act.

Section 4.Acts of Traffic-ing in Persons. - !tshall be unlawful for any person, natural orjuridical, to commit any of the following acts;

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32/151

a1 To recruit, transport, transfer< harbor,provide, or receive a person by anymeans, including those done under theprete*t of domestic or overseasemployment or training orapprenticeship, for the purpose ofprostitution, pornography, se*uale*ploitation, forced labor, slavery,

involuntary servitude or debt bondage


35/151

acts of traffic)ing and protect, rehabilitate,reintegrate traffic)ed persons into themainstream of society. Such programs shallinclude, but not limited to, the following;

a1 5rovision for mandatory services setforth in Section 4 of this Act to the contrarynotwithstanding, any traffic)ed person shall beentitled to the witness protection programprovided therein.

Section 19.Traffic-ed Persons %ho are

1oreign Nationals. - Subject to the guidelinesissued by the Council, traffic)ed persons in the5hilippines who are nationals of a foreigncountry shall also be entitled to appropriateprotection, assistance and services available totraffic)ed persons under this Act; Provided, Thatthey shall be permitted continued presence inthe 5hilippines for a length of time prescribed bythe Council as necessary to effect theprosecution of offenders.

Section 20. (nter*Agency Council AgainstTraffic-ing. - There is hereby established an!nter-Agency Council Against Traffic)ing, to becomposed of the Secretary of the 2epartment of@ustice as Chairperson and the Secretary of the2epartment of Social elfare and 2evelopmentas Co-Chairperson and shall have the followingas members;

a1 Secretary, 2epartment of oreignAffairs


40/151

e*ploitation, or discrimination because of aphysical or mental disability or condition

through its monitoring of the situation of womenparticularly on violence against women. Roles and Responsibilities of therRelevant ,ational Government Agencies. EConsistent with their mandates under e*isting

laws, the following agencies shall integratehuman traffic)ing issues in their strategy andprogram formulation and implement programsand services for the prevention and suppressionof traffic)ing and for the protection of traffic)edvictims.They shall li)ewise have the following roles andresponsibilities;

a1 2epartment of the !nterior and "ocal:overnment 2!":1

i1 Conduct a systematic information

disseminationHadvocacy and preventioncampaign against traffic)ing in personsAn Act 2efining Certain ights of 5ersonsArrested, 2etained or Bnder Custodial!nvestigation As ell As The 2uties of theArresting, 2etaining and !nvestigating 'fficers,and 5roviding 5enalties or Diolations Thereof1shall, at all times, be respected.

Artice @IIIRESC"EREC!@ERD AN RE#ATRIATI!N!* @ICTI$S

Sec. >. The Country Team Approach. Thecountry team approach under #*ecutive 'rder+o. 60, series of 884 and further enunciated inepublic Act +o. >70 shall be the operationalscheme under which 5hilippine embassiesabroad shall provide protection to traffic)edpersons regardless of their immigration status.Bnder the Country Team Approach, all officers,representatives and personnel of the 5hilippinegovernment posted abroad regardless of theirmother agencies shall, on a per country basis,act as one-country team with mission under the

leadership of the Ambassador or the head ofmission.

Sec. 8. Rescue at the Country ofDestination. E

a1 Procedure. hen the victim is a ilipinonational and at the time of rescue is residingabroad, the embassy or consulate which hasjurisdiction over the place where the victim isresiding shall verify the veracity of the report of

incidence of traffic)ing and inquire about thecondition of the victim.Consistent with the country team approach, the5ost concerned shall send a team composed ofa consular officer and personnel from the5hilippine 'verseas "abor 'ffice 5'"'1 or theilipino or)ers esource Center C1, the'ffice of the Social elfare AttachN as the casemay be, to conduct a visit to the jail,establishment, wor) site or residence of thevictim. !n the case of 5osts without attachedservices, the teamwill be composed of a consular officer and

personnel from the Assistance-to-+ationalssection.The 5ost shall ma)e representations with thepolice authorities or other relevant lawenforcement agencies with respect to theconduct of rescue operations.

escue operation shall also be made incooperation and close coordination with some+:'?s, local contacts or private individualswhen necessary.

!n countries and areas where the services of the

C is not accessible, a mobile type ofservices shall be e*tended by the country teammembers to traffic)ed persons regardless oftheir status in the host country.Thereafter, the victim will be encouraged toe*ecute a sworn statement, recounting amongothers, the peopleHestablishment involved in therecruitmentHtransfer and deployment, the modusoperandi employed to recruit, transport anddeploy the victim, and other pertinentinformation which could provide a lead in theinvestigation and eventual prosecution of theperpetrators.

b1Assistance to Traffic-ed Persons. Thetraffic)ed person shall be provided withtemporary shelter and other forms of assistance.

!n countries where there is an ilipino or)ersesource Center, the services available tooverseas ilipinos as provided for in epublicAct +o. >70 shall also be e*tended to traffic)edpersons regardless of their status in the hostcountry.

c1 Legal Assistance 1und. Traffic)ed persons

shall be considered under the categoryF'verseas ilipinos in2istressG and may avail of the "egal Assistanceund created by epublic Act +o. >70, subject



49/151

to the guidelines as provided by law, includingrules and regulations issued by the 2A asto its utili(ation and disbursement.

Sec. 47. Repatriation of Traffic)ed ersons.The 2A, in coordination with 2'"# and otherappropriate agencies, shall have the primaryresponsibility for the repatriation of traffic)ed

persons, regardless of whether they aredocumented or undocumented.

!f, however, the repatriation of traffic)ed personsshall e*pose the victims to greater ris)s, the 2Ashall ma)e representation with the hostgovernment for the e*tension of appropriateresidency permitsand protection, as may be legally permissible inthe host country.

Sec. 4. rocedure for Repatriation. !naccordance with e*isting rules and regulations

on the use and disbursement of Assistance-to-+ationals und of the 2A for the repatriation ofdistressed 's, the 5ost shall immediatelyrequest the 2A, through the 'ffice of theBndersecretary for =igrant or)ers? Affairs'B=A1, allocation of funds for the repatriationof the victim. !n appropriate cases and to avoidre-victimi(ation, the 5ost may withdraw thepassport of the victim and forward it to the 2Aand inits place issue a Travel 2ocument A orm68&11 valid for direct travel to the 5hilippines.The 5ost concerned shall report to the 2A,

through the 'B=A, copy furnished the 'fficeof Consular Affairs, the actual date ofrepatriation and other pertinent information andsubmit a copy of the sworn statement and otherrelevant documents.

!n appropriate cases, especially when the victimis suffering from mental illness, has sufferedphysical or se*ual abuse or has received seriousthreats to his or her life and safety, the victim willbemet upon arrival in the 5hilippines by 2S2personnel, in coordination with the @oint Tas)

orce Against Traffic)ing in 5ersons and othergovernment agencies such as 'A, &! and2'9. !n the case of mentally ill patients, minors,and other persons requiring special care, the5ost shall designate a duly authori(ed individualto escort said victims to the 5hilippines.

The victim will be encouraged, if he or she hasnot done so before, to e*ecute a swornstatement with the view of filing the appropriatecharges against the suspected traffic)er in the5hilippines. Should the victim request theassistance of 2A, 'B=A shall interview the

victim and ma)e recommendations forinvestigation with law enforcement agenciessuch as the 5+5 and the +&!. !n cases whererecruitment agencies are involved, the case

shall also be referred to the 5'#A forappropriate action. The report shall also beforwarded to the &! for case build up. The victimmay be referred to the 2S2H"ocal SocialelfareAnd 2evelopment 'ffice or to the +&! 'ne-StopShop for psychosocial interventions,psychological and medical e*amination and

follow-through therapy sessions. 5rotectivecustody and emergency shelter shall also beprovided to the victim, in appropriate cases.

Sec. 4. Rescue (ithin the Country. escueoperations within the country shall be primarilyunderta)en by the law enforcement agencies incoordination with ":Bs, 2'"#, 2S2 and2'9. Bpon receipt of a report of a suspected oralleged traffic)ing ncident or activity, the lawenforcement agency to which the report is madeshall conduct rescue operations of traffic)edpersons. At the minimum, rescue operations

shall be guided by the following;

a1 Conduct of rescue operation of traffic)edpersons shall be properly coordinated with theconcerned agencies particularly 2S2Hlocalsocial welfare and development officer to the contrarynotwithstanding, any traffic)ed person shall beentitled to the witness protection programprovided therein.

Sec. 0/. 0mmunity from Criminal rosecution.Any person who has personal )nowledge in thecommission of any of the offenses penali(edunder the Act and who voluntarily gives materialinformation relative thereto and willingly testifiesagainst the offender shall be e*empt fromprosecution for the offense with reference towhich his information and testimony were given,

subject to the following conditions;

a1 The information and testimony are necessaryfor the conviction of the accused< andb1 Such information and testimony are not yet inthe possession of the state.

Sec. 03. andatory !ervices. To ensurerecovery, rehabilitation and reintegration into themainstream of society, concerned governmentagencies shall ma)e available the followingservices to traffic)ed persons;

a1 #mergency shelter or appropriate housing

R"E III. ReoctionCncetion o' Eo-ent#erit& I&&/e

. The permits issued may, motu proprio orupon a petition, be cancelled or revo)edbased on any of the following grounds;

. =isrepresentation of facts or falsificationof the documents submitted

1.2. $i&&ionrie& or reiio/& orer& o intento ene in in'/ eo-ent>

1.3. +oer& o' Seci Ine&tor& Re&ient @i&

(SIR@), Seci Retiree& Re&ient @i& (SRR@),Tret- Trer& @i& (9) or Seci Non%iirnt@i& (47()2), o occ/- n- e;ec/tie, i&or-,&/eri&or-, or tecnic o&ition in n-e&ti&ent>

1.4. Aencie&, orni=tion& or inii/&eter /ic or rite, o &ec/re te&erice& o' 'orein ro'e&&ion& to rctice teir

ro'e&&ion& in te #iiine& in te #iiine&/ner recirocit- n oter interntionreeent&>

1.5. Non%Ino%Cine&e Re'/ee& o re &-/&eeer& n ien re'/ee &tt/& - te "niteNtion& +i Coi&&ioner on Re'/ee&("N+CR) or te ertent o' /&tice /ner !ertent !rer No. 94, &erie& o' 1998>

1.6. Re&ient 'orein ntion& &eeineo-ent in te #iiine&.:. #emption. Te 'ooin cteorie& o' 'oreinntion& re e;et 'ro &ec/rin n

eo-ent erit in orer to or in te#iiine&.2.1 A eer& o' te iotic &erice& n'orein oernent o''ici& ccreite - te#iiine oernent>2.2 !''icer& n &t'' o' interntionorni=tion& o' ic te #iiine oernenti& cooertin eer, n teir eitite&o/&e e&irin to or in te #iiine&>2.3 *orein ntion& eecte & eer& o' teoernin or o o not occ/- n- otero&ition, /t e on- otin rit& in tecorortion> n2.4 A 'orein ntion& rnte e;etion -&eci & n oter & tt - e

ro/te - te Conre&&.Rule 00

rocedures in the rocessing of Applications forA

1. A 'orein ntion& &eein eo-ent in te#iiine& /ner R/e 1 ereo' or teirro&ectie eo-er&, & 'ie teiriction& it te !E Reion !''icein

http://www.chanrobles.com/legal4labor.htm#LABOR%20CODE%20OF%20THE%20PHILIPPINES%20%5BFULL%20TEXT%5Dhttp://www.chanrobles.com/administrativecodeofthephilippines.htmhttp://www.chanrobles.com/legal4labor.htm#LABOR%20CODE%20OF%20THE%20PHILIPPINES%20%5BFULL%20TEXT%5Dhttp://www.chanrobles.com/administrativecodeofthephilippines.htm


63/151

4.Denial of Application for A% An iction'or AE# - e enie &e on te ro/n o'non%coince it n- o' te re?/ireent& 'ori&&/nce o' AE# or 'or i&rere&enttion o' 'ct&in te iction or &/i&&ion o' '&i'ie ortere oc/ent&.

*orein ntion& o&e iction& e eenenie & not e oe to re%- in n- o'te !E Reion !''ice&.

5. Rene$al of ermit % An iction 'or reneo' AE# & e 'ie t e&t 'i'teen (15) -&e'ore it& e;irtion. *or eectie o''icer&,iction& 'or rene & e 'ie /oneection or t e&t tirt- (30) -& e'ore tee''ectiit- o' te icntB& ter o' o''ice i' te&/cceein ter o' o''ice i& &certine.

*i/re to 'ie te iction 'or rene o' erititin te re&crie erio & e &/

1.2 Te 'orein ntion & een ecre & n/ne&ire ien - coetent /toritie&>

1.3 Non%coince it te conition& 'or icte AE# & i&&/e>

1.4 *i/re to rene AE# itin one (1) -er 'terit& e;irtion.2. #etition& 'or cncetion or reoction o'erit& i&&/e & e re&oe itin tirt- (30)cenr& 'ro receit tereo'.

3. An- riee rt- - 'ie $otion 'orRecon&iertion nor Ae n te &e &e re&oe &e on #rr 4 o' ti& R/e.

4. Remedies in Case of Denial or Cancellation% A$otion 'or Recon&iertion -e 'ie - nriee rt- itin &een (7) cenr -&'ter receit o' te !rer o' eniCncetion.Te !E Reion irector & re&oe te &i$otion 'or Recon&iertion itin ten (10)cenr -& 'ro receit tereo'.

A otion 'or Recon&iertion 'ie 'ter te erioo' &een (7) cenr -& /t itin ten (10)cenr -& 'ter receit o' te eni & etrete & n e.

An e 'ro te eci&ion o' te !E Reionirector - e 'ie it te Secretr- o' orn Eo-ent itin ten (10) cenr -&'ro receit o' n !rer 'ro te !E Reion

irector. Te eci&ion o' te Secretr- o' orn Eo-ent & e 'in n /nee.

Rule 07enal and Transitory rovisions

1. Te !E Reion irector&, 'ter /e noticen erin, & e te oer to orer nio&e 'ine o' *ie To/&n #e&o& (#5,000.00)on 'orein ntion& 'o/n orin ito/t nAE# 'or e&& tn one (1) -er n Ten To/&n#e&o& (#10,000.00) 'or ore tn one (1) -er.

2. A iction& 'or eo-enteritcerti'icte& enin t te !E%R! /onte e''ectiit- o' te&e /ieine& & ecoere n roce&&e /ner te roi&ion& o'te&e /ieine&.

3. +oer& o' roi&ion n e;tene AE#&i&&/e /ner $eorn/ te 24 A//&t 2001rerin Aterntie Interi $e&/re& 'or teI&&/nce o' Aien Eo-ent #erit&, &- 'or n AE# /r&/nt to te&e /ieine& onor e'ore te e;irtion o' te roi&ion ne;tene AE#.

4. *orein ntion& o re re- orin inte co/ntr- n o e not -et &ec/re tere?/i&ite eo-ent erit & e ninet-(90) -& 'ro te e''ectiit- o' te&e /ieine&

Du$an La#or + Prof. Battad Page >


64/151

to &ec/re te &i eo-ent erit ito/tent-.

Rule 7iscellaneous rovisions

1. anual of perations. % Te /re/ o' oc

Eo-ent & i&&/e $n/ o' !ertion& toieent te roi&ion& o' te&e /ieine&.

2. !eparability Clause.% I' n- roi&ion or rt o'ti& ertent !rer or te iction tereo'to n- er&on or circ/&tnce i& e ini -te Co/rt&, te reinin i roi&ion& o' ti&ertent !rer & not e ''ecte.

3. Repealing Clause. % A /ieine&, r/e& nre/tion& n reeent& incon&i&tent ereitre ere- reee or oi'ie ccorin-.

4. ffectivity.% Te&e /ieine& & te e''ect'i'teen (15) -& 'ter it& /iction in to (2)ne&er& o' ener circ/tion.%&stt.t%&, Art" X!!, Se'" 12

Section 12.The State shall promote the preferentialuse of ilipino labor, domestic materials and locallyproduced goods, and adopt measures that help ma)ethem competitive.

F" %&*t%&s %4 W%r

,eferene8 Arts. 60;< /$ni#us ,ules! Boo3 +++! ,ules l!lA! ll

Title !'O!+: C'+2!T!'+SA+2 #ST 5#!'2S

Chapter !

9'BS ' 'OAT. >. Coverage. - The provisions of this Title shallapply to employees in all establishments andunderta)ings whether for profit or not, but not togovernment employees, managerial employees, fieldpersonnel, members of the family of the employerwho are dependent on him for support, domestichelpers, persons in the personal service of another,

and wor)ers who are paid by results as determined bythe Secretary of "abor in appropriate regulations.

As used herein, "managerial employees" refer tothose whose primary duty consists of themanagement of the establishment in which they areemployed or of a department or subdivision thereof,and to other officers or members of the managerialstaff.

"1ield personnel" shall refer to non-agriculturalemployees who regularly perform their duties awayfrom the principal place of business or branch office ofthe employer and whose actual hours of wor) in thefield cannot be determined with reasonable certainty.

AT. >4. Normal hours of #or-. - The normal hours ofwor) of an

labor law

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