MA. JEAN B. CASTAEDAArellano University School of LawLabor Law 1 Atty. Porfirio DG. Panganiban, Jr.

TOPICS: Apprentices and Learners Persons with Disability (R.A. No. 7277, as amended by R.A. No. 9442)a. Definitionb. Rights of Persons with Disabilityc. Prohibition on Discrimination Against Persons with Disabilityd. Incentives for Employers

APPRENTICES AND LEARNERS

Meaning of an Apprentice

An apprentice is a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under the law. He is a person undergoing training for an approved apprenticeable occupation. Once he has completed apprenticeship training, he can qualify for work in a highly-skilled trade (Article 58, Labor Code).

Meaning of Apprenticeship

Any practical training on the job supplemented by theoretical instructions is apprenticeship (Article 58, Labor Code).

Significance of Apprenticeship

Apprenticeship fills the demand of employers for workers in certain trades or occupations which require special skills. An apprentice is one who is covered by a written apprenticeship agreement with an employer, whereby the latter binds himself to train the apprentice, who in turn, agrees to work for the employer.

Nature of Apprenticeship Program

The organization of apprenticeship programs is primarily a voluntary undertaking of employers except as otherwise provided (Sec. 3, Rule VI, Book II, Rules Implementing the Labor Code).

Qualifications of an Apprentice

To qualify as an apprentice, a person shall: (a) be at least fourteen (14) years of age; (b) possess vocational aptitude and capacity for appropriate tests; and (c) possess the ability to comprehend and follow oral and written instructions (Article 59, Labor Code).

On-The-Job Training

On-The-Job Training is the practical work experience through actual participation in productive activities given to or acquired by an apprentice (Sec. 2[h], Rule VI, Book II, Rules Implementing the Labor Code). On-The-Job Training must be specifically described in the apprenticeship standards of a particular program.

Certificate of Recognition

To enjoy the benefits which the Technical Education and Skills Development Authority (TESDA) or other government agencies may extend to duly recognized apprenticeship programs, an employer shall submit in quadruplicate to the Training Section of the appropriate Apprenticeship Division of the appropriate Regional Office of the apprenticeship standards of the proposed program prepared in accordance with guidelines set by the TESDA. While TESDA has absorbed the apprenticeship functions of the Bureau of Local Employment, if the apprenticeship standards are found to be in order, a certificate of recognition shall be issued by the Apprenticeship Division concerned within five (5) days from receipt thereof.

Employment of Apprentices

Only employers in highly-technical industries may enter into apprenticeship agreements or otherwise employ apprentices only in apprenticeable trades and occupations approved by the Secretary of Labor and Employment (Article 60, Labor Code). Contents of Apprenticeship Agreements

An apprenticeship contract is an agreement whereby the employer binds himself to train the apprentice and the apprentice, in turn, accepts the terms of the training. The agreement shall be signed by the employer or his duly authorized representative and by the apprentice. An apprenticeship agreement with a minor shall be signed on his behalf by his parent or guardian or, if the latter is not available, by an authorized representative of the Department of Labor and Employment (Secs. 20 and 22, Rule VI, Book II, Rules implementing the Labor Code).

Every apprenticeship agreement contains the following:

a. Full name and address of the contracting parties;b. Date of birth of the apprentice;c. Name of trade, occupation or job in which the apprentice will be trained and the dates on which such training will begin and will approximately end;d. Approximate number of hours of on-the-job training with compulsory theoretical instructions which the apprentice shall undergo during his training;e. Schedule of the work processes of the trade/occupation in which the apprentice shall be trained and the approximate time to be spent on the job in each process;f. Graduated scales of wages to be paid the apprentice;g. Probationary period of the apprentice during which either party may summarily terminate their agreement; andh. A clause that if the employer is unable to fulfil his training obligation, he may transfer the agreement, with the consent of the apprentice, to any other employer who is willing to assume such obligation (Sec. 18, Rule VI, Book II, Rules Implementing the Labor Code).The period of apprenticeship contract shall not exceed six (6) months (Sec. 19, Rule VI, Book II, Rules Implementing the Labor Code).

Signing of Apprenticeship Agreement

Every apprenticeship agreement shall be signed by the employer or his agent or by an authorized representative of any of the recognized organizations, associations or groups, and by the apprentice. An apprenticeship agreement with a minor shall be signed on his behalf by his parent or guardian or, if the latter is not available, by an authorized representative of the Department of Labor, and the same shall be binding during its lifetime. An apprenticeship agreement entered into by the parties should be ratified by an appropriate apprenticeship committee (Sec. 62, Labor Code).

Venue of Apprenticeship Programs

Article 63 of the Labor Code provides the employer three (3) venues of apprenticeship training programs. It can be conducted in the following places:a) Sponsoring firms or employers premises;b) Training centred of the DOLE; orc) Public training institutions, or a combination of both

Sponsoring of Apprenticeship Program

As stipulated under Article 64 of the Labor Code, apprenticeship programs can be undertaken or sponsored by the following:

a) In the plant, shop or premises of the employer firm concerned if the apprenticeship program is organized by an individual employer or firm;b) In the premises of one or several firms designated for the purpose by the organizer of the program if such organizer is an association of employers, civic group or the like; andc) In a Department of Labor Training Center or other public training institutions with which TESDA has made appropriate arrangements.

The filing of the proposed apprenticeship program with the DOLE is a preliminary step towards its final approval and does not instantaneously give rise to an employer-apprentice relationship.

Investigation of Violation of Apprenticeship Agreement

Upon complaint of any interested person or upon its own initiative, the appropriate agency of the Department of Labor or its authorized representative shall investigate any violation of an apprenticeship agreement pursuant to such rules and regulations as may be prescribed by the Secretary of Labor (Article 65, Labor Code).

Appeal to the Secretary of Labor

The decision of the authorized agency of the Department of Labor may be appealed by any aggrieved person to the Secretary of Labor within five (5) days from receipt of the decision. The decision of the Secretary of Labor shall be final and executor (Article 66, Labor Code).

Exhaustion of Administrative Remedies

No person shall institute any action for the enforcement of any apprenticeship agreement or damages for breach of any such agreement, unless heh as exhausted all available administrative remedies (Article 67, Labor Code).

Aptitude Testing of Applicants

An employer who has recognized apprenticeship program shall provide aptitude tests to apprentices-applicants. However, if the employer does not have adequate facilities, the Department of Labor may provide the service free of charge (Sec. 12, Rule VI, Book II, Rules Implementing the Labor Code).

Responsibility for Theoretical Instruction

Compulsory theoretical instructions to apprentices may be undertaken by the employer himself if he has adequate facilities and qualified instructors for the purpose. He shall indicate his intention to assume such responsibility in the apprenticeship standards of his program. The course outline and bio-data of the instructors who will conduct the course shall conform with the standards set by the Department of Labor and Employment (Sec. 27, Rule VI, Book II, Rules Implementing the Labor Code).

Voluntary Organization of Apprenticeship Programs; Exemptions

Primarily, an apprenticeship is a voluntary undertaking. However, an employer could be compelled to train apprentices in the following instances:

1. When there is a critical shortage of trained manpower in certain trades, occupations, jobs or employment levels where national security or particular requirements of economic development so demand, the Secretary of Labor and Employment may recommend to the President of the Philippines the compulsory training of apprentices; and2. Where services of foreign technicians are utilized by private companies in apprenticeable trades (Sec. 41, Rule VI, Book II, Rules Implementing the Labor Code).

This is designed to discourage employment of aliens. Admittedly, employment of a foreigner will likely displace a Filipino worker of his opportunity or chance of employment. Positively, employment of foreigners will trigger off transmission of highly technical know-how into the Filipino minds. In the long run, the one benefited is the Filipino nation.

Deductibility of Training Costs

An additional deduction from the taxable income of one-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices shall be granted to the person or enterprise organizing an apprenticeship program, provided , that such program is duly recognized by the DOLE. Further, provided that such deduction shall not exceed ten percent (10%) of direct labor wage and that the person or enterprise who/which wishes to avail himself/itself of this incentive should pay the apprentices the minimum wage Sec. 71, Labor Code).

Apprentices Without Compensation

The Secretary of Labor may authorize the hiring of apprentices without compensation whose training on the job is required by the school curriculum as:

a) A prerequisite for graduation; orb) A requirement for taking a government board examination (Sec. 40, Rule VI, Book II, Rules Implementing the Labor Code).

Learners Defined

Learners are persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on-the-job in a relatively short period of time which shall not exceed three (3) months (Article 73, Labor Code).

When Learners May Be Hired

Learners may be employed when no experienced workers are available, the employment of learners being necessary to prevent curtailment of employment opportunities,and such employment will not create unfair competition in terms of labor costs or impair working standards (Article 74, Labor Code).

Learnership Agreement

A learnership agreement refers to the employment and training contract entered into between the employer and the learner. It contains the following:

a) The names and addresses of the employer and the learner;b) The occupation to be learned and the duration for the training period which shall not exceed three (3) months;c) The wage of the learner which shall be at least 75% of the applicable minimum wage; andd) A commitment to employ the learner if he so desires, as a regular employee upon completion of training.

A learner who has worked during the first two months shall be deemed a regular employee if training is terminated by the employer before the end of the stipulated period through no fault of the learner). This is a case of pre-termination of the agreement by the employer.

Learners in Piecework

The minimum compensation of learners is not less than seventy-five percent (75%) of the applicable minimum wage provided by law.

Learners working on piece or incentive-rate jobs are entitled to full pay for work done during their training period (Article 76, Labor Code).

HANDICAPPED WORKERS

Handicapped workers are those whose earning capacity is impaired by age or physical or mental deficiency or injury (Article 78, Labor Code).

On the other hand, a disabled worker is one whose earning capacity is impaired by mental, physical or sensory deficiency or injury (Republic Act 7277).

Employment Agreement

The contract of employment between an employer and a handicapped worker is called Employment Agreement which should be submitted by the employer to TESDA and the appropriate Apprenticeship Division of the Regional Office of the DOLE. It should contain the following:

a) The names and addresses of the employer and the handicapped worker;b) The rate of pay of the handicapped worker which shall not be less than 75% of the legal minimum wage; c) The nature of work to be performed by the handicapped worker; andd) The duration of employment.

Eligibility for Apprenticeship

Handicapped workers are eligible for employment as apprentices or learners if their handicap is such that it does not impede the performance of job operations in the particular trade or occupation which is the subject of the apprenticeship or learnership program (Sec. 5, Rule VIII, Book II, Rules Implementing the Labor Code).

The disability must be related to the work for which he was hired, otherwise, he is not considered as handicapped or disabled worker. He may have some disability but if the same is not related to his work, he cannot be considered a disabled worker in relation to the particular work for which he was hired. Thus, if the efficiency or quality of work is not impaired by the disability in relation to the work performed, he is not classified as a handicapped worker.

REPUBLIC ACT NO. 7277 (as amended by R.A. No. 9442)

R.A. 7277, an act providing for the rehabilitation, self-development and self-reliance of disabled person and their integration into the mainstream of society and for other purposes, otherwise known as the Magna Carta for Disabled Persons, covers all disabled persons, and concerned departments, offices and agencies of the National Government or non-government organization.

Definition

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;

Impairment is any loss, diminution or aberration of psychological, physiological, or anatomical structure of function;

Disability shall mean (1) a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical function of an individual or activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment;

Handicap refers to a disadvantage for a given individual resulting from an impairment or a disability, that limits or prevents the functions or activity, that is considered normal given the age and sex of the individual;

Rehabilitation is an integrated approach to physical, social, cultural, spiritual, educational and vocational measures that create conditions for the individual to attain the highest possible level of functional ability;Social Barriers refer to the characteristics of institutions, whether legal, economic, cultural, recreational or other, any human group, community, or society which limit the fullest possible participation of disabled persons in the life of the group. Social barriers include negative attitudes which tends to single out and exclude disabled persons and which distort roles and interpersonal relationship;

Auxiliary Aids and Services include:1) qualified interpreters or other effective methods of delivering materials to individuals with hearing impairments; 2) qualified readers, taped tests, or other effective methods of delivering materials to individuals with visual impairments; 3) acquisition or modification of equipment or devices; and 4) other similar services and actions or all types of aids and services that facilitate the learning process of people with mental disability;

Reasonable Accommodation include (1) improvement of existing facilities used by employees in order to render these readily accessible to and usable by disabled persons; and (2) modification of work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustments or modifications of examinations, training materials or company policies, rules and regulations, the provisions of auxiliary aids and services, and other similar accommodations for disabled persons;

Sheltered Employment refers to the provision of productive work for disabled persons through workshop providing special facilities, income producing projects or homework schemes with a view to given them the opportunity to earn a living thus enabling them to acquire a working capacity required in open industry.

Auxiliary Social Services are the supportive activities in the delivery of social services to the marginalized sectors of society;

Marginalized Disabled Persons refer to disabled persons who lack access to rehabilitative services and opportunities to be able to participate fully in socioeconomic activities and who have no means of livelihood or whose incomes fall below poverty threshold;

Qualified Individual with a Disability shall mean an individual with a disability who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires. However, consideration shall be given to the employers judgement as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job;

Readily Achievable means a goal can be easily attained and carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include 1) the nature and cost of the action; 2) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility; 3) the overall financial resources of the covered entity with respect to the number of its employees; the number, type and location of its facilities; and 4) the type of operation or operations of the covered entity, including the composition, structure and functions of the work force of such entity; the geographic separateness, administrative or fiscal relationship of the facilities in question to the covered entity;

Public Transportation means transportation by air, land and sea that provides the public with general or special service on a regular and continuing basis;

Covered entity means employer, employment agency, labor organization or joint labor-management committee; andCommerce shall be taken to mean as travel, trade, traffic, commerce, transportation, or communication among the provinces or between any foreign country or any territory or possession and any province.

Rights and Privileges of Disabled Persons

Equal Opportunity for EmploymentNo disabled persons shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person. Five percent (5%) of all casual, emergency and contractual positions in the Department of Social Welfare and Development; Health; Education, Culture and Sports; and other government agencies, offices or corporations engaged in social development shall be reserved for disabled persons.

Sheltered Employment

If suitable employment for disabled persons cannot be found through open employment as provided in the immediately preceding Section, the State shall endeavor to provide it by means of sheltered employment. In the placement of disabled persons in sheltered employment, it shall accord due regard to the individual qualities, vocational goals and inclinations to ensure a good working atmosphere and efficient production.

Apprenticeship

Subject to the provision of the Labor Code as amended, disabled persons shall be eligible as apprentices or learners; Provided, That their handicap is not much as to effectively impede the performance of job operations in the particular occupation for which they are hired; Provided, further, That after the lapse of the period of apprenticeship if found satisfactory in the job performance, they shall be eligible for employment.

Incentives for Employer Adequate incentives shall be provided to private entities which employ disabled persons to encourage the active participation of the private sector in promoting the welfare of disabled persons and to ensure gainful employment for qualified disabled persons.

Private entities that employ disabled persons who meet the required skills or qualifications, either as regular employee, apprentice or learner, 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 persons: Provided, however, That such entities present proof as certified by the Department of Labor and Employment that disabled person are under their employ. Provided, further, That the disabled employee is accredited with the Department of Labor and Employment and the Department of Health as to his disability, skills and qualifications.

Private entities that improved or modify their physical facilities in order to provide reasonable accommodation for disabled persons shall also be entitled to an additional deduction from their net taxable income, equivalent to fifty percent (50%) of the direct costs of the improvements or modifications. This section, however, does not apply to improvements or modifications of facilities required under Batas Pambansa Bilang 344.

Prohibition on Discrimination Against Disabled Persons

Discrimination on Employment

No entity, whether public or private, shall discriminate against a qualified disabled person by reason of disability in regard to job application procedures, the hiring, promotion, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. The following constitute acts of discrimination:

a) Limiting, segregating or classifying a disabled job applicant in such a manner that adversely affects his work opportunities;

b) 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 on question and are consistent with business necessity;

c) Utilizing standards, criteria, or methods of administration that:1) have the effect of discrimination on the basis of disability; or2) perpetuate the discrimination of others who are subject to common administrative control;

d) Providing less compensation, such as salary, wage or other forms of remuneration and fringe benefits, to a qualified disabled employee, by reason of his disability, than the amount to which a non-disabled person performing the same work is entitled;

e) Favoring a non-disabled employee over a qualified disabled employee with respect to promotion, training opportunities, study and scholarship grants, solely on account of the latters disability;

f) Re-assigning or transferring a disabled employee to a job or position he cannot perform by reason of his disability;

g) Dismissing or terminating the services of a disabled employee by reason of his disability unless the employer can prove that he impairs the satisfactory performance of the work involve to the prejudice of the business entities; Provided, however, That the employer first sought provide reasonable accommodations for disabled persons;

h) Failing to select or administer in the effective manner employment tests which accurately reflect the skills, aptitude or other factor of the disabled applicant or employee that such test purports to measure, rather than the impaired sensory, manual or speaking skills of such applicant or employee, if any; and

i) Excluding disabled persons from membership in labor unions or similar organization.

RELATED CASES:

Atlanta Industries vs. Aprilito Sebolino, et al.G.R. No. 187320 January 26, 2011Re: APPRENTICESHIP AGREEMENT, ValidityFacts:

Atlanta Industries, Inc. is a domestic corporation engaged in the manufacturing of steelpipes. Almoite and Costales were employed by petitioner as early as December 2003, while Sebolino and Sagun were employed as early as March 2004. Respondents occupied positions such as machine operator, extruder operator and scaleman. Two apprenticeship agreements were entered between Atlanta Industries, Inc. and private respondents, one in 2004 and the other in 2005. After the second apprenticeship agreement expired, the respondents were dismissed, hence, they filed a case for illegal dismissal. In defense, Atlanta Industries, Inc. argued that the workers were not entitled to regularization and to their money claims because they were engaged as apprentices under a government-approved apprenticeship program. The company offered to hire them as regular employees in the event vacancies for regular positions occur in the section of the plant where they had trained. They also claimed that their names did not appear in the list of employees, prior to their engagement as apprentices.

Issue:

Whether or not the apprenticeship agreements were valid.

Held:

No. The first and second apprenticeship agreements were defective as they were executed in violation of the law and the rules. The agreements did not indicate the trade or occupation in which the apprentice would be trained; neither was the apprenticeship program was approved by the Technical Education and Skills Development Authority (TESDA). Moreover, with the expiration of the first agreement and the retention of the employees, the employer, to all intents and purposes, recognized the completion of their training and their acquisition of a regular employee status. To foist upon them the second apprenticeship agreement for a second skill which was not even mentioned in the agreement itself, is a violation of the Labor Codes implementing rules and is an act manifestly unfair to the employees.

Century Canning Corp. vs. CA, et al.G.R. No. 152894 August 17, 2007

Re: Apprenticeship Agreement

Facts:

On 15 July 1997, Century Canning Corporation (petitioner) hired Gloria C. Palad (Palad) as fish cleaner at petitioners tuna and sardines factory. Palad signed on 17 July 1997 an apprenticeship agreement with petitioner. Palad received an apprentice allowance of P138.75 daily. On 25 July 1997, petitioner submitted its apprenticeship program for approval to the Technical Education and Skills Development Authority (TESDA) of the Department ofLabor and Employment (DOLE). On 26 September 1997, the TESDA approved petitioners apprenticeship program.According to petitioner, a performance evaluation was conducted on 15 November 1997, where petitioner gave Palad a rating of N.I. or needs improvement since she scored only 27.75% based on a 100% performance indicator. Furthermore, according to the performance evaluation, Palad incurred numerous tardiness and absences. As a consequence, petitioner issued a termination notice dated 22 November 1997 to Palad, informing her of her termination effective at the close of business hours of 28 November 1997. Palad then filed a complaint for illegal dismissal, underpayment of wages, and non-payment of pro-rated13th month pay for the year 1997.

Issues:1. Whether or not the Apprenticeship Agreement was valid and binding between the parties; and2. Whether or not Palad was illegally dismissed by the petitioner

Held:

1. The Court held that the apprenticeship agreement which Palad signed was not valid and binding because it was executed more than two months before the TESDA approved petitioners apprenticeship program. The Court cited Nitto Enterprises v. National Labor Relations Commission, where it was held that an apprenticeship program should first be approved by the DOLE before an apprentice may be hired, otherwise the person hired will be considered a regular employee. It is mandated that apprenticeship agreements entered into by the employer and apprentice shall be entered only in accordance with the apprenticeship program duly approved by the Minister ofLabor and Employment.Prior approval by the Department of Labor and Employment of the proposed apprenticeship program is, therefore, a condition sine qua non before an apprenticeship agreement can be validly entered into. The Labor Code defines an apprentice as a worker whois covered bya written apprenticeship agreement with an employer. Since Palad is not considered an apprentice because the apprenticeship agreement wasenforced before the TESDAsapproval of petitioners apprenticeship program, Palad is deemed a regular employee performing the job of a fish cleaner. Clearly, the job of a fish cleaner is necessary in petitioners business as a tuna and sardines factory. Under Article 280 of theLabor Code, an employment is deemed regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade ofthe employer.

2. Under Article 279 of the Labor Code, an employer may terminate the services of an employee for just causes or for authorized causes. under Article 277(b) of the Labor Code, the employer must send the employee who is about to be terminated, a written notice stating the causes for termination and must give the employee the opportunity to be heard and to defend himself. Thus, to constitute valid dismissal from employment, two requisites must concur: (1) the dismissal must be for a just or authorized cause; and (2) the employee must be afforded an opportunity to be heard and to defend himself. Palad was not accorded due process. Even if petitioner did conduct a performance evaluation on Palad, petitioner failed to warn Palad of her alleged poor performance. In fact, Palad denies any knowledge of the performance evaluation conducted and of the result thereof. Petitioner likewise admits that Palad did not receive the notice of termination because Palad allegedly stopped reporting for work. The records are bereft of evidence to show that petitioner ever gave Palad the opportunity to explain and defend herself. Clearly, the tworequisites for a valid dismissal are lacking in this case.

Nitto Enterprises vs. NLRC and Roberto Capili G.R. No. 114337 September 29, 1995

Re: Apprenticeship Agreement

Facts:

Petitioner Nitto Enterprises, a company engaged in the sale of glass and aluminum products, hired Roberto Capili sometime in May 1990 as an apprentice machinist, molder and coremaker as evidenced by an apprenticeship agreement 2 for a period of six (6) months from May 28, 1990 to November 28, 1990 with a daily wage rate of P66.75 which was 75% of the applicable minimum wage. On August 2, 1990, Roberto Capili who was handling a piece of glass which he was working on, accidentally hit and injured the leg of an office secretary who was treated at a nearby hospital. Further, Capili entered a workshop within the office premises which was not his work station. There, he operated one of the power press machines without authority and in the process injured his left thumb. The following day he was asked to resign. Three days after, private respondent formally filed before the NLRCArbitration Branch, National Capital Region a complaint forillegal dismissal and payment of other monetary benefits. The Labor Arbiter rendered his decision finding the termination of private respondent as valid and dismissing the money claim forlack ofmerit. Onappeal, NLRC issued anorder reversingthe decision ofthe LaborArbiter. TheNLRC declared that Capiliwas a regularemployee ofNitto Enterprises and not an apprentice. Consequently, Labor Arbiter issued a Writ of Execution ordering for the reinstatement of Capili and to collect his back wages. Petitioner, Nitto Enterprises filed a case to the Supreme Court.

Issue:

Does the NLRC correctly rule that Capili is a regular employee and not an apprentice of Nitto Enterprises?Held:

Yes. The apprenticeship agreement between petitioner and private respondent was executed on May 28, 1990 allegedly employing the latter as an apprentice in the trade of "care maker/molder. However, the apprenticeship Agreement was filed only on June 7, 1990.Notwithstanding the absence of approval by the Department of Labor and Employment, the apprenticeship agreement was enforced the day it was signed. The act of filing the proposed apprenticeship program with the Department of Labor and Employment is a preliminary step towards its final approval and does not instantaneously give rise to an employer-apprentice relationship.Nitto Enterprises did not comply with the requirements of the law. It is mandated that apprenticeship agreements entered into by the employer and apprentice shall be entered only in accordance with the apprenticeship program duly approved by the Minister of Labor and Employment. Thus, the apprenticeship agreement has no force and effect; and Capili is considered to be a regular employee of the company.

Mariwasa, et al. vs. the Deputy Minister of Labor and Employment, et al.G.R. No. 74246 January 26, 1989

Facts:

Private respondent Dequilla was hired on probation by petitioner Mariwasa Manufacturing, Inc. as a general utility worker on January 1979. Upon the expiration of the probationary period of six months, Dequila was informed by his employer that his work had proved unsatisfactory and had failed to meet the required standards. To give him a chance to improve his performance and qualify for regular employment, instead of dispensing with his service then and there, with his written consent Mariwasa extended his probation period for another three months from July to October 1979. His performance, however, did not improve and on that account Mariwasa terminated his employment at the end of the extended period. Dequila thereupon filed with the Ministry of Labor against Mariwasa a complaint for illegal dismissal and violation of Presidential Decrees Nos. 928 and 1389 but was dismissed by Ministry of Labor NCR and ruled that the termination of Dequila's employment was in the circumstances justified and rejected his money claims for insufficiency of evidence. On appeal to the Office of the Minister, however, said disposition was reversed and held that Dequila was already a regular employee at the time of his dismissal, therefore, could not have been lawfully dismissed for failure to meet company standards as a probationary worker.

Issue:

Whether or not private respondent is a probationary employee only?

Held:

The Court held, Art. 282 of the Labor Code, which provides that: Art. 282. 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 probationary period shall be considered a regular employee.The extension of Dequila's probation was ex gratia, an act of liberality on the part of his employer affording him a second chance to make good after having initially failed to prove his worth as an employee. Such an act cannot now unjustly be turned against said employer's account to compel it to keep on its payroll one who could not perform according to its work standards. The law, surely, was never meant to produce such an inequitable result. By voluntarily agreeing to an extension of the probationary period, Dequila in effect waived any benefit attaching to the completion of said period if he still failed to make the grade during the period of extension. The Court finds nothing in the law which by any fair interpretation prohibits such a waiver. And no public policy protecting the employee and the security of his tenure is served by prescribing voluntary agreements which, by reasonably extending the period of probation, actually improve and further a probationary employee's prospects of demonstrating his fitness for regular employment.

Marites Bernardo, et al. vs. NLRC, et al.G.R. No. 122917July 12, 1999

Re: Handicapped Workers

Facts:

Between 1988 and 1993, Far East Bank and Trust Co. hired 56 deaf-mutes as Money Sorters and Counters through a uniformly worded agreement called Employment Contract for Handicapped Workers. This contract was renewed every six months, as per its stipulations. The contract also stated that the employment of the deaf-mutes was temporary, and they were a special type of workers apart from the regular employees; and that the provisions of Book Six of the Labor Code, particularly on regulation of employment and separation pay, are not applicable to them.Forty-three (43) deaf-mutes who were hired as Money Sorters and Counters by FEBTC filed a case against the said company, arguing that they should be deemed as regular workers. The labor arbiter ruled in favor of FEBTC, stating that they could not be deemed regular employees, but only as special employees falling under Article 80 of the Labor Code. The NLRC affirmed the labor arbiter and stated additionally that the Magna Carta for Disabled Persons was not applicable considering the prevailing circumstances/milieu of the case.

Issue:Whether or not the deaf-mutes have already become regular employees.

Held:Yes. At the outset, let it be known that the Court appreciates the nobility of FEBTCs effort to provide employment to physically impaired individuals and to make them more productive members of society. However, it cannot be allowed to elude the legal consequences of that effort, simply because it now deems their employment irrelevant.

The facts, viewed in light of the Labor Code and the Magna Carta for Disabled Persons, indubitably show that the petitioners, except sixteen of them, should be deemed regular employees. As such, they have acquired legal rights that the Court is duty-bound to protect and uphold, not as a matter of compassion but as a consequence of law and justice. The stipulations in their employment contracts indubitably conform with Article 80 of the Labor Code, but succeeding events and the enactment of RA 7277 (the Magna Carta for Disabled Persons) justify the application of Article 280 of the Labor Code.

FEBTC entered into the aforesaid contract with a total of 56 handicapped workers and renewed the contracts of 37 of them. In fact, two of them worked from 1988 to 1993. Verily, the renewal of the contracts of the handicapped workers and the hiring of others lead to the conclusion that their tasks were beneficial and necessary to the bank. More important, these facts show that they were qualified to perform the responsibilities of their positions. In other words, their disability did not render them unqualified or unfit for the tasks assigned to them. Section 5 of the Magna Carta for Disabled Persons mandates that a qualified disabled employee should be given the same terms and conditions of employment as a qualified able-bodied person. The fact that the employees were qualified disabled persons necessarily removes the employment contracts from the ambit of Article 80. Since the Magna Carta accords them the rights of qualified able-bodied persons, they are thus covered by Article 280 of the Labor Code. Without a doubt, the task of counting and sorting bills is necessary and desirable to the business of FEBTC. The contract signed by petitioners is akin to a probationary employment, during which the bank determined the employees fitness for the job. When the bank renewed the contract after the lapse of the six-month probationary period, the employees thereby became regular employees. No employer is allowed to determine indefinitely the fitness of its employees. As regular employees, the 27 petitioners are entitled to security of tenure; that is, their services may be terminated only for a just or authorized cause. Because FEBTC failed to show such cause, these 27 petitioners are deemed illegally dismissed and therefore entitled to backwages and reinstatement without loss of seniority rights and other privileges. Considering the allegation of FEBTC that the job of money sorting is no longer available because it has been assigned back to the tellers to whom it originally belonged, the said petitioners are hereby awarded separation pay in lieu of reinstatement.In rendering this decision, the Court emphasizes not only the constitutional bias in favor of the working class, but also the concern of the State for the plight of the disabled. The noble objectives of the Magna Carta for Disabled Persons are not based merely on charity or accommodation, but on justice and the equal treatment of qualified persons, disabled or not. In the present case, the handicap of the petitioners is not a hindrance to their work. The eloquent proof of this statement is the repeated renewal of their employment contracts. Why then should they be dismissed, simply because they are physically impaired? The Court believes that, after showing their fitness for the work assigned to them, they should be treated and granted the same rights like any other regular employees.

NLRC decision reversed, FEBTC ordered to pay backwages and separation pay to 27 petitioners. The Magna Carta for Disabled Persons mandates that qualified disabled persons be granted the same terms and conditions of employment as qualified able-bodied employees. Once they have attained the status of regular workers, they should be accorded all the benefits granted by law, notwithstanding written or verbal contracts to the contrary. This treatment is rooted not merely on charity or accommodation, but on justice for all. Articles 280 and 281 of the Labor Code put an end to the pernicious practice of making permanent casuals of our lowly employees by the simple expedient of extending to them probationary appointments, ad infinitum. A contract of employment is impressed with public interest. Provisions of applicable statutes are deemed written into the contract, and the parties are not at liberty to insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting with each other. An employee is regular because of the nature of the work and the length of service, not because of the mode or even the reason for hiring them. The determination of whether employment is casual or regular does not depend on the will or word of the employer, and the procedure of hiring, but on the nature of the activities performed by the employee, and to some extent, the length of performance and its continued existence.

Ma. Jean B. CastaedaPage 20