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LABOR LAWS OF THE PHILIPPINES - chanrobles.com

Pre-Week Guide on LABOR Law 2006 Bar Examinations Prof. Joselito Guianan Chan 1 STATEMENT OF COVERAGE This Pre-Week Guide is presented in the form of an outline of basic principles which bar reviewees may use as a quick guide on the significant areas of LABOR law in the 2006 Bar Examinations. This is presented in three (3) parts. PART ONE covers Books 1 to 4 of the LABOR Code and some important social legislations. PART TWO covers Book 5 and PART THREE covers Books 6 and 7 of the LABOR Code. LABOR laws OF THE PHILIPPINES PART ONE LAW ON LABOR STANDARDS 1. What is the protection-to- LABOR clause in the Constitution? The State shall afford full protection to LABOR , local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law.

Pre-Week Guide on Labor Law 2006 Bar Examinations Prof. Joselito Guianan Chan 1 STATEMENT OF COVERAGE This Pre-Week Guide is presented in the form of an outline of basic principles which bar reviewees may use as a quick guide on the significant areas of labor law in the 2006 Bar Examinations.

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Transcription of LABOR LAWS OF THE PHILIPPINES - chanrobles.com

1 Pre-Week Guide on LABOR Law 2006 Bar Examinations Prof. Joselito Guianan Chan 1 STATEMENT OF COVERAGE This Pre-Week Guide is presented in the form of an outline of basic principles which bar reviewees may use as a quick guide on the significant areas of LABOR law in the 2006 Bar Examinations. This is presented in three (3) parts. PART ONE covers Books 1 to 4 of the LABOR Code and some important social legislations. PART TWO covers Book 5 and PART THREE covers Books 6 and 7 of the LABOR Code. LABOR laws OF THE PHILIPPINES PART ONE LAW ON LABOR STANDARDS 1. What is the protection-to- LABOR clause in the Constitution? The State shall afford full protection to LABOR , local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law.

2 They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of LABOR to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth. (Section 3 ( LABOR ), Article XIII [Social Justice and Human Rights] of the 1987 Constitution) 2. What are the basic principles enunciated in the LABOR Code on protection to LABOR ?

3 A. The State shall afford protection to LABOR , promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. b. LABOR contracts are not ordinary contracts as the relation between capital and LABOR is impressed with public interest. c. In case of doubt, LABOR laws and rules shall be interpreted in favor of LABOR . d. LABOR Code applies to all workers, whether agricultural or non-agricultural. e. Applicability of LABOR Code to government-owned or controlled corporations: When created with original or special charter - Civil Service laws , rules and regulations; When created under the Corporation Code - LABOR Code applies. RECRUITMENT AND PLACEMENT OF WORKERS: Pre-Week Guide on LABOR Law 2006 Bar Examinations Prof.

4 Joselito Guianan Chan 23. What is the relevant law on recruitment for overseas employment? Migrant Workers and Overseas Filipinos Act of 1995 (R. A. No. 8042). 4. What are the entities authorized to engage in recruitment and placement? a. public employment offices; b. philippine Overseas Employment Administration (POEA); c. private recruitment entities; d. private employment agencies; e. shipping or manning agents or representatives; f. such other persons or entities as may be authorized by the Secretary of LABOR and Employment; and g. construction contractors. 5. Money claims of OFWs. (SEE PART TWO OF THIS 3-PART PRE-WEEK SERIES FOR MORE EXTENSIVE DISCUSSION OF THIS TOPIC) 6. What is the nature of the liability of local recruitment agency and foreign principal? 1. Local Agency is solidarily liable with foreign principal. 2. Severance of relations between local agent and foreign principal does not affect liability of local recruiter.

5 7. Who has jurisdiction over claims for death and other benefits of OFWs? LABOR Arbiters have jurisdiction over claims for death, disability and other benefits arising from employment of OFWs. Work-connection is required. 8. What is the basis of compensation for death benefits of OFWs? Basis of compensation for death generally is whichever is greater between philippine law or foreign law. 9. Which has jurisdiction over disciplinary action cases of OFWs? The POEA retains jurisdiction over disciplinary action cases. 10. Is direct-hiring of OFWs allowed? Why? No. Employers cannot directly hire workers for overseas employment except through authorized entities (see enumeration above). The reason for the ban is to ensure full regulation of employment in order to avoid exploitation. (Note: Any non-resident foreign corporation directly hiring Filipino workers is doing business in the PHILIPPINES and may be sued in the PHILIPPINES ).

6 11. What is illegal recruitment? 1. Illegal recruitment under Article 38 applies to both local and overseas employment. 2. Illegal recruitment may be committed by any person whether licensees or non-licensees or holders or non-holders of authority. 3. Elements of illegal recruitment: a. First element: Recruitment and placement activities. Pre-Week Guide on LABOR Law 2006 Bar Examinations Prof. Joselito Guianan Chan 3 Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed as engaged in such act. b.

7 Second element: Non-licensee or non-holder of authority - means any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of LABOR and Employment, or whose license or authority has been suspended, revoked or canceled by the POEA or the Secretary of LABOR and Employment. Some relevant principles: Mere impression that recruiter is capable of providing work abroad is sufficient. "Referral" of recruits also constitutes recruitment activity. Absence of receipt to prove payment is not essential to prove recruitment. Only one (1) person recruited is sufficient to constitute recruitment. Non-prosecution of another suspect is not material. A person convicted for illegal recruitment may still be convicted for estafa. 12. When is illegal recruitment considered economic sabotage? Illegal recruitment is considered economic sabotage - when the commission thereof is attended by the qualifying circumstances as follows: a.

8 By a syndicate - if carried out by a group of 3 or more persons conspiring and confederating with one another; b. In large scale - if committed against 3 or more persons individually or as a group. 13. What is the prescriptive period of illegal recruitment cases? Under R. A. 8042, the prescriptive period of illegal recruitment cases is five (5) years except illegal recruitment involving economic sabotage which prescribes in twenty (20) years. 14. What are the requirements before a non-resident alien may be employed in the PHILIPPINES ? Any alien seeking admission to the PHILIPPINES for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the PHILIPPINES shall obtain an employment permit from the Department of LABOR . The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the PHILIPPINES who is competent, able and willing at the time of application to perform the services for which the alien is desired.

9 For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise. 15. May an alien employee transfer his employment after issuance of permit? After the issuance of an employment permit, the alien shall not transfer to another job or change his employer without prior approval of the Secretary of LABOR . TRAINING AND EMPLOYMENT OF SPECIAL WORKERS Pre-Week Guide on LABOR Law 2006 Bar Examinations Prof. Joselito Guianan Chan 4 APPRENTICE: 16. What is an apprenticeship? Who is an apprentice? Apprenticeship means any training on the job supplemented by related theoretical instruction involving apprenticeable occupations and trades as may be approved by the Secretary of LABOR and Employment. 17. Who is an apprentice? An apprentice is a worker who is covered by a written apprenticeship agreement with an employer.

10 18. What are the qualifications of an apprentice? a. be at least fifteen (15) years of age, provided those who are at least fifteen (15) years of age but less than eighteen (18) may be eligible for apprenticeship only in non-hazardous occupation; b. be physically fit for the occupation in which he desires to be trained; c. possess vocational aptitude and capacity for the particular occupation as established through appropriate tests; and d. possess the ability to comprehend and follow oral and written instructions. 19. What are the important principles related to apprenticeship? a. Wage rate of apprentices - 75% of the statutory minimum wage. b. Apprentices become regular employees if program is not approved by DOLE. c. Ratio of theoretical instructions and on-the-job training - 100 hours of theoretical instructions for every 2,000 hours of practical training on-the-job. LEARNERS: 20. Who is a learner? A learner is a person hired as a trainee in industrial occupations which are non-apprenticeable and which may be learned through practical training on the job for a period not exceeding three (3) months, whether or not such practical training is supplemented by theoretical instructions.


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