2013-GREEN-NOTES-LABOR-LAW.docx - CONSTITUTIONAL MANDATES ON LABOR What are the Constitutional provisions that specifically touch on labor 1 Article II

2013-GREEN-NOTES-LABOR-LAW.docx - CONSTITUTIONAL MANDATES...

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Unformatted text preview: CONSTITUTIONAL MANDATES ON LABOR What are the Constitutional provisions that specifically touch on labor? 1. Article II, Section 18 of the 1987 Constitution provides that “The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.” 2. Article XIII, Section 3 of the 1987 Constitution provides that “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-organizations, and peaceful concerted activities, including the right to strike in accordance with law. 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. What are the Constitutional Provisions Related to Labor? Article II Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. Section 10. The State shall promote social justice in all phases of national development. Section 11. The State values the dignity of every human person and guarantees full respect for human rights. Section 13. The State recognizes the vital role of the youth in nationbuilding and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Section 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments. Article III Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. ARTICLE XIII -- SOCIAL JUSTICE AND HUMAN RIGHTS Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. LABOR Sec. 3. “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 selforganization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. 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 setting 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). Article II, Section 18 “The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.” What are the State Policies on Labor Relations? Article 211, Labor Code provides: 1. Promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes; 2. Promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development; 3. Foster the free and voluntary organization of a strong and united labor movement; 4. Promote the enlightenment of workers concerning their rights and obligations as union members and as employees; 5. Provide an adequate administrative machinery for the expeditious settlement of labor or industrial disputes; 6. Ensure a stable but dynamic and just industrial peace; and 7. Ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare. What are the basic principles in the constitution and labor-related laws on protection to labor? The state shall afford full protection to labor, promote full employment, equal work opportunities without bias or discrimination, regulate the relations of employers and employees, and assure workers rights. (A-PER-A) In case of doubt or ambiguity, labor laws and rules are to be construed in favor of labor (Art. 4, Labor Code) o In interpreting the Constitution’s protection to labor and social justice provisions and the labor laws and rules and regulations implementing the Constitutional mandate, the SC adopts the liberal approach which favors the exercise of labor rights. (Meralco vs. NLRC, G.R. No. 78763. Jul.12, 1989) o While the Constitution is committed to the policy of social justice and the protection of the working class, it should not be supposed that every labor dispute shall be automatically resolved in favor of labor. It is mandated that there be equal protection and respect not only the laborer’s side but also the management and/or employer’s side. The law, in protecting the rights of the laborer, authorizes neither oppression nor self-destruction of the employer. (Colgate Palmolive Philippines vs Ople, G.R. No. 73681. June 30,1988) To whom does the Labor Code apply? General Rule: The Code applies to all workers, whether agricultural or nonagricultural, including employees in a government corporation incorporated under the corporation code; Exceptions: (GC-FICL) 1. Government employees; 2. Employees of government Corporations created by special or original charter; 3. Foreign governments; 4. International Agencies, employees of intergovernmental or international organizations; 5. Corporate officers/Intra-corporate disputes which fall under PD 902-A and now fall under the jurisdiction of, the Regular Courts pursuant to the Securities Regulation Code; and 6. Local water districts except where NLRC jurisdiction is invoked. Who is a worker/employee? Article 13 – A worker is any member of the labor force, whether employed or unemployed. A person who works for an employer for a fee; a person working for salary or wages. Note the term employee under Article 212 of the Labor Code: Not limited to the employees of a particular employer, it shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent or regular employment. What is the doctrine of Management Prerogatives? Under the doctrine of management prerogative, every employer has the inherent right to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, the time, place and manner of work, work supervision, transfer of employees, lay-off of workers, and discipline, dismissal, and recall of employees (Rural Bank of Cantilan . v. Julve, GR No. 169750, February 27, 2007.) It is however subject to limitations provided by (1) law; (2) contract or collective bargaining agreements; and (3) general principles of fair play and justice. (Mendoza v. Rural Bank of Lucban, GR No. 155421, July 7, 2004.) EMPLOYER-EMPLOYEE RELATIONSHIP 1. FOUR FOLD TEST In determining whether a given set of circumstances constitute or exhibit an employer-employee relationship, the accepted rule is that the elements or circumstances relating to the following matters shall be examined and considered: selection and engagement of the employees payment of wages power of dismissal power to control the employees’ conduct 2. The “control test” is the most crucial and determinative indication of the presence or absence of an employer-employee relationship. Absence of such despite the presence of the other three elements will not suffice for the relationship to exist. Not every form of control will have the effect of establishing an employeremployee relationship. A line should be drawn between: Rules that merely serves as guidelines, which only promote the result. In such case, no employer-employee relationship exist. Rules that fix the methodology and bind or restrict the party hired to the use of such means of methods. These address both the result and means employed to achieve it and hence, employeremployee relationship exist. 3. Cases where employer-employee relationship EXISTS: Jeepney drivers on boundary system (Martinez vs. NLRC, 272 SCRA 793) Drivers or helpers of salesman (Alhambra Industries vs. CIR, 355 SCRA 553) Handicraft workers on “pakyaw system” (Dy Keh Beng vs. Int’l. Labor, 90 SCRA 161) Musicians who were engaged by musical director for background music in making of movies (LVN vs. Phil. Musicians Guild, 1 SCRA 132) Tailors, pressers and stitchers in COD tailoring department (Rosario Bros vs. Ople) 4. Cases where employer-employee DOES NOT EXIST: Insurance company vis-à-vis commission agents (Insular Life vs. NLRC, 179 SCRA 459) Company vs. Collecting agents on commission basis (Singer Sewing Machine vs. Drilon, 193 SCRA 270) Softdrinks company vs. independent contractors selling softdrinks (Mafinco vs. Ople, 70 SCRA 139) Shoe shine boys (Besa vs. Trejano, 146 SCRA 501) PROBATIONARY EMPLOYMENT Probationary employment exists where the employee, upon his engagement is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment based on reasonable standards made known to him at the time of his engagement (Art 282, LC). In all cases involving employees on probationary status, the employer shall make known to the employee at the time he is hired, the standards by which he will qualify as a regular employee (A.M. Oreta & Co., Inc. vs. NLRC). As a general rule, in the event the employer neglects or fails to inform the employee at the time of engagement the standard for him to qualify as a regular employee, he cannot be terminated for failure to comply with the criteria for regularship. The employee concerned can only be removed for just or authorized causes. A probationary employee may be terminated on two grounds: a. for just cause b. 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 4. An employee who is allowed to work after a probationary period shall be considered a regular employee (Art.281, LC). However, the employer and employee may, by agreement, extend the probationary period of employment beyond six (6) months (Mariwasa Manufacturing, Inc. vs. Leogardo). Voluntary Resignation, ONCE ACCEPTED, cannot be withdrawn without the consent of the employer. KINDS OF EMPLOYMENT 1. REGULAR EMPLOYMENT An employee is deemed to be regular where he has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, the provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties (Art. 280, LC) The primary standard is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. 2. TERM EMPLOYMENT It is a contract of employment for a definite period which terminates by its own terms at the end of such period (Brent School vs. Zamora, 181 SCRA 702). Criteria for fixed term employment contracts so that the same will not circumvent security of tenure (Phil. National Oil Company-Energy Development Corp. vs. NLRC, et.al., 239 SCRA 272): The fixed period of employment was knowingly and voluntarily agreed upon by the parties, without any force, duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or It satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former on the latter. 3. PROJECT EMPLOYMENT It is one wherein the employee is assigned to carry out a “specific project or undertaking,” the duration and scope of which were specified at the time the employees were engaged for that project. 328): 2 Distinguishable Types of Project Activities (ALU-TUCP vs. NLRC, 234 SCRA 1. A particular job or undertaking that is WITHIN THE REGULAR OR USUAL BUSINESS of the employer company, but which is DISTINCT and SEPARATE, and IDENTIFIABLE as such, from the other undertakings of the company. Such job or undertaking begins and ends at determined or determinable times. e.g. A construction company which has construction projects in Manila, Mandaluyong and Baguio. 2. A particular job or undertaking that is NOT WITHIN THE REGULAR BUSINESS of the corporation. Such a job or undertaking must also be IDENTIFIABLY SEPARATE and DISTINCT from the regular business. The job or undertaking also begins and ends at determined or determinable times. e.g. A steel-making company undertakes projects related to breeding and production of fish or cultivation of vegetables. General Rule: LENGTH OF SERVICE is not controlling in project employment (Hilario Rada vs. NLRC, 205 SCRA 69). Exception: Although the work to be performed is only for a SPECIFIC PROJECT or SEASONAL, where a person thus engaged has been performing the job for at least one year, even if the performance is not continuous or is merely intermittent, the law deems the REPEATED and CONTINUING NEED FOR ITS PERFORMANCE as being sufficient to indicate the necessity or desirability of that activity to the business or trade of the employer. The employment of such person is also then deemed to be REGULAR WITH RESPECT TO SUCH ACTIVITY and WHILE SUCH ACTIVITY EXISTS (Magsalin, et.al. vs. National Organization of Working Men, et al., May 9, 2003). 4. SEASONAL EMPLOYMENT Seasonal workers are those who are called to work from time to time according to the occurrence of varying need during a season, and are laid off after completion of the required phase of work. Seasonal workers who works for more than one season are deemed to have acquired regular employment. Seasonal workers during the off season are merely considered on leave. They are also entitled to separation pay. 5. CASUAL EMPLOYMENT It is one wherein an employee is engaged to perform activities which are not necessary or desirable in the usual trade or business of the employer. Pre-week in Labor Law and Social Legislation - JOBL NOTES JOB CONTRACTING AND LABOR-ONLY CONTRACTING 1. Labor-only contracting 1) the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others; and 2) the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer (Baguio, et.al vs. NLRC, et al., 202 SCRA 465) 2. Job Contracting 1) the contractor caries on an independent business and undertakes the contract work on his own account and under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof; and 2) the contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary in the conduct of his business. 3. What is the effect of a finding that a contractor is a labor-only contractor? A finding that a contractor is “LABOR-ONLY” contractor is equivalent to declaring that there is an employer-employee relationship between the principal and employees of the labor-only contractor. In such cases, the person or intermediary shall be considered merely as an agent of the employer, who shall be responsible to the workers for a more comprehensive purpose, not only for unpaid wages but for all claims under the Labor Code and ancillary Laws (San Miguel Corp. vs. MAERC Integrated Service, Inc., et al., G.R. No. 144672, July 10, 2003). In contrast, the liability of a principal in LEGITIMATE JOB CONTRACTING is for a limited purpose, where he becomes jointly and severally liable with the job contractor only for the payment of the employees’ wages but subject to reimbursement from the independent job contractor. 4. What is the effect for failure of owner of project to require the contractor to post bond? The owner of the project must answer for whatever liabilities the contractor may have incurred to his employees; without prejudice on the part of the project owner to seek reimbursement from the contractor. (Baguio, et al. vs. NLRC)\ NEW: THE LAW ON LABOR-ONLY CONTRACTING (PROHIBITED) AND INDEPENDENT OR JOB CONTRACTING (PERMITTED) DOLE Department Arrangements) Order 18-A (Rules on Contracting and Subcontracting Department Order No. 18-A Series of 2011 RULES IMPLEMENTING ARTICLES 106 TO 109 OF THE LABOR CODE, AS AMENDED By virtue of the power vested in the Secretary of Labor and Employment under Articles 5 and 106 to 109 of the Labor Code of the Philippines, as amended, the following regulations governing contracting and subcontracting arrangements are hereby issued: Section 1. Guiding principles. Contracting and subcontracting arrangements are expressly allowed by law and are subject to regulations for the promotion of employment and the observance of the rights of workers to just and humane conditions of work, security of tenure, self-o...
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