Dear PAO,
The passage of the Kasambahay Law has spawned confusion in our household
regarding our maids. What are my obligations to my maids regarding
their benefits and leaves? Thank you.
Lui
Dear Lui,
Republic Act (R.A.) No 10361, otherwise known as the “Batas Kasambahay”
aims to protect our kasambahay by mandating their employers to provide
certain benefits they did not previously enjoy under our existing labor
laws. It also aims to protect employers in the sense that it requires
the submission of certain requirements to ensure the identity of the
kasambahay.
As to your obligations regarding benefits and leaves, R.A. No 10361
provides that the employer shall safeguard the health and safety of the
domestic worker (Section 19). The employer shall provide an aggregate
daily rest period of eight (8) hours a day (Section 20) and the
kasambahay shall be entitled to at least twenty-four (24) consecutive
hours of rest in a week. The weekly rest period shall be agreed upon in
writing by the employer and the kasambahay (Section 21). In lieu of a
consecutive 24-hour rest period, they may agree to either offset a day
of absence with a particular rest day, waive a particular rest day in
return for an equivalent daily rate of pay, accumulating rest days not
exceeding five (5) days, or other similar arrangements.
The employer must ensure that the minimum wage of the kasambahay
shall not be less than two thousand five hundred pesos (P2,500) a month
if employed in the National Capital Region, two thousand pesos (P2,000) a
month if employed in chartered cities and first class municipalities,
and one thousand five hundred pesos (P1,500) a month for those employed
in other municipalities. Their wages must be paid on time and in cash
directly to the kasambahay. The new law also requires a 13th month pay
for the kasambahay. The employer is now required to issue a pay slip for
every pay day (Sections 25 and 26).
In addition, the kasambahay is entitled to an annual service
incentive leave of five (5) days if he or she has rendered at least one
(1) year of service. These leaves are not cumulative, cannot be carried
over to the succeeding years and are not convertible to cash (Section
29). The kasambahay is also entitled to coverage under the Social
Security System (SSS), the Philippine Health Insurance Corporation
(PhilHealth), and the Home Development Fund or Pag-IBIG. The premium for
the said benefits shall be shouldered by the employer, unless the
domestic worker is receiving a wage of five thousand pesos (P5,000) or
higher every month. In this case, the kasambahay shall pay the
proportionate share in the premium payments or contributions, as
provided by law (Section 30).
We hope that we were able to enlighten you on the matter. Please be
reminded that this advice is based solely on the facts you have narrated
and our appreciation of the same. Our opinion may vary when other facts
are changed or elaborated.
source; Manila Times Column of Atty Persida Acosta
Tuesday, November 12, 2013
Saturday, October 19, 2013
No employer-employee relationship for agents on commission
In 1989, a labor union filed a petition with a sewing machine company
to be the sole and exclusive bargaining agent that represents the
company’s collectors. The company refused to recognize the labor union,
explaining that the union members were not actually their employees but
were independent contractors. To support its claim, the company showed a
collection agency agreement. Due to their disagreement, the matter was
brought to mediation.
During mediation, the med-arbiter found an employer-employee relationship to exist between the union members and the company. This was likewise affirmed by the Secretary of Labor. The collectors thus continued to assert that they performed the most desirable and necessary activities for the continuous and effective operations of the business of the company.
On a petition for certiorari, the Supreme Court (SC) reiterated the importance of the control test in order to conclude if an employer-employee relationship exists -
The present case mainly calls for the application of the control test, which if not satisfied, would lead us to conclude that no employer-employee relationship exists. Hence, if the union members are not employees, no right to organize for purposes of bargaining, nor to be certified as such bargaining agent can ever be recognized. The following elements are generally considered in the determination of the employer-employee relationship: “(1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee’s conduct—although the latter is the most important element.”
Under the collection agency agreement, the collection agents were paid their compensation for their services on a commission basis, particularly six percent of all collections made by the collecting agent. From here, it is clear that the agreement did not fix an amount for wages nor the required number working hours the collecting agents must put it. Thus, the Court held that collecting agents that are paid on a commission basis are considered independent contractors and not employees of the company. In such a situation, the company does not pass the control test because the company has no control over the collecting agent’s performance of collection services. On the contrary, the company only has control over the amount of collections made, which is a result of his work. In order for the company to have control over the commission agents, the company should not only have control over the end or result to be achieved but also over the means and methods in achieving the end.
Citing Investment Planning Corp. of the Philippines v. Social Security System, the SC also differentiated independent contractors from employees -
[T]he work of petitioner’s agents or registered representatives more nearly approximates that of an independent contractor than that of an employee. The latter is paid for the labor he performs, that is, for the acts of which such labor consists the former is paid for the result thereof… Even if an agent of petitioner should devote all of his time and effort trying to sell its investment plans he would not necessarily be entitled to compensation therefor. His right to compensation depends upon and is measured by the tangible results he produces.
Lastly, the Court reiterated that those who are not considered employees of a company, such as independent contractors, are not entitled to the constitutional right to join or form a labor organization for purposes of collective bargaining. Accordingly, there is no constitutional and legal basis to grant a petition for direct certification to the “union” (Singer Sewing Machine Company v. Drilon, G.R. No. 91307, 24 January 1991, J. Gutierrez, Sr.).
source: Manila Times Column of Benchpress
During mediation, the med-arbiter found an employer-employee relationship to exist between the union members and the company. This was likewise affirmed by the Secretary of Labor. The collectors thus continued to assert that they performed the most desirable and necessary activities for the continuous and effective operations of the business of the company.
On a petition for certiorari, the Supreme Court (SC) reiterated the importance of the control test in order to conclude if an employer-employee relationship exists -
The present case mainly calls for the application of the control test, which if not satisfied, would lead us to conclude that no employer-employee relationship exists. Hence, if the union members are not employees, no right to organize for purposes of bargaining, nor to be certified as such bargaining agent can ever be recognized. The following elements are generally considered in the determination of the employer-employee relationship: “(1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee’s conduct—although the latter is the most important element.”
Under the collection agency agreement, the collection agents were paid their compensation for their services on a commission basis, particularly six percent of all collections made by the collecting agent. From here, it is clear that the agreement did not fix an amount for wages nor the required number working hours the collecting agents must put it. Thus, the Court held that collecting agents that are paid on a commission basis are considered independent contractors and not employees of the company. In such a situation, the company does not pass the control test because the company has no control over the collecting agent’s performance of collection services. On the contrary, the company only has control over the amount of collections made, which is a result of his work. In order for the company to have control over the commission agents, the company should not only have control over the end or result to be achieved but also over the means and methods in achieving the end.
Citing Investment Planning Corp. of the Philippines v. Social Security System, the SC also differentiated independent contractors from employees -
[T]he work of petitioner’s agents or registered representatives more nearly approximates that of an independent contractor than that of an employee. The latter is paid for the labor he performs, that is, for the acts of which such labor consists the former is paid for the result thereof… Even if an agent of petitioner should devote all of his time and effort trying to sell its investment plans he would not necessarily be entitled to compensation therefor. His right to compensation depends upon and is measured by the tangible results he produces.
Lastly, the Court reiterated that those who are not considered employees of a company, such as independent contractors, are not entitled to the constitutional right to join or form a labor organization for purposes of collective bargaining. Accordingly, there is no constitutional and legal basis to grant a petition for direct certification to the “union” (Singer Sewing Machine Company v. Drilon, G.R. No. 91307, 24 January 1991, J. Gutierrez, Sr.).
source: Manila Times Column of Benchpress
Sunday, September 29, 2013
Voluntary resignation not presumed
A construction company employed a mason for a project-based work.
However, due to the constant projects of the construction company, the
mason was employed with it for an uninterrupted period of over seven
years. Unfortunately, on his seventh year, he was diagnosed with
pulmonary tuberculosis, and began to miss work frequently.
When he was finally able to return to work, the construction company handed a “termination paper,” which was for the purpose of extending his sick leave. Despite not fully understanding the document, he signed the paper anyway and just discovered later that he was being terminated. Hence, a complaint for illegal dismissal was filed against the construction company. The construction company, however, retorted that due to health reasons, the mason tendered a voluntary resignation letter before his employment contract expired.
The Executive Labor Arbiter (ELA) found the construction company guilty of illegal dismissal and was ordered to reinstate the employee immediately. On appeal to the National Labor Relations Commission, the ELA’s order was set aside on the ground that the employee was a project employee and resigned voluntary -
[r]ecords do show that complainant executed a voluntary resignation. And while there may indeed be a slight difference in the signature and handwriting, this do not readily mean that complainant did not execute the same as was the inclination of the Executive Labor Arbiter.
The Court of Appeals (CA) held that the mason had already acquired the status of a regular employee because his “repeated re-hiring and the continuing need for his services over a long span of time had undeniably made him a regular employee.” As a regular employee, his removal was not one of the authorized causes found under the Labor Code. Moreover, the mason’s supposedly voluntary resignation was not given merit since records showed that the ELA “concluded that the handwriting in the supposed resignation letter was undeniably different from that of complainant” and the construction company failed to rebut the discrepancy in the signatures.
The Supreme Court agreed with the ruling of the CA explaining that the CA’s reliance on the ELA’s findings were warranted - The CA’s reliance on the conclusion and finding by ELA Panganiban-Ortiguerra was warranted. Her observation that the handwriting in the resignation letter was ‘undeniably different’ from that of Bello could not be ignored or shunted aside simply because she had no expertise to make such a determination… Yet, even had the letter been actually signed by him, the voluntariness of the resignation could not be assumed from such fact alone. His claim that he had been led to believe that the letter would serve only as the means of extending his sick leave from work should have alerted DMCI to the task of proving the voluntariness of the resignation. It was obvious that, if his claim was true, then he did not fully comprehend the import of the letter, rendering the resignation farcical . . . Under the circumstances, DMCI became burdened with the obligation to prove the due execution and genuineness of the document as a letter of resignation.
We reiterate that it is axiomatic in labor law that the employer who interposes the defense of voluntary resignation of the employee in an illegal dismissal case must prove by clear, positive, and convincing evidence that the resignation was voluntary; and that the employer cannot rely on the weakness of the defense of the employee.
The requirement rests on the need to resolve any doubt in favor of the workingman (D.M. Consunji Corporation v. Bello, G.R. No 159371, 29 July 2013, J. Bersamin).
source: Manila Times Column of Benchpress
When he was finally able to return to work, the construction company handed a “termination paper,” which was for the purpose of extending his sick leave. Despite not fully understanding the document, he signed the paper anyway and just discovered later that he was being terminated. Hence, a complaint for illegal dismissal was filed against the construction company. The construction company, however, retorted that due to health reasons, the mason tendered a voluntary resignation letter before his employment contract expired.
The Executive Labor Arbiter (ELA) found the construction company guilty of illegal dismissal and was ordered to reinstate the employee immediately. On appeal to the National Labor Relations Commission, the ELA’s order was set aside on the ground that the employee was a project employee and resigned voluntary -
[r]ecords do show that complainant executed a voluntary resignation. And while there may indeed be a slight difference in the signature and handwriting, this do not readily mean that complainant did not execute the same as was the inclination of the Executive Labor Arbiter.
The Court of Appeals (CA) held that the mason had already acquired the status of a regular employee because his “repeated re-hiring and the continuing need for his services over a long span of time had undeniably made him a regular employee.” As a regular employee, his removal was not one of the authorized causes found under the Labor Code. Moreover, the mason’s supposedly voluntary resignation was not given merit since records showed that the ELA “concluded that the handwriting in the supposed resignation letter was undeniably different from that of complainant” and the construction company failed to rebut the discrepancy in the signatures.
The Supreme Court agreed with the ruling of the CA explaining that the CA’s reliance on the ELA’s findings were warranted - The CA’s reliance on the conclusion and finding by ELA Panganiban-Ortiguerra was warranted. Her observation that the handwriting in the resignation letter was ‘undeniably different’ from that of Bello could not be ignored or shunted aside simply because she had no expertise to make such a determination… Yet, even had the letter been actually signed by him, the voluntariness of the resignation could not be assumed from such fact alone. His claim that he had been led to believe that the letter would serve only as the means of extending his sick leave from work should have alerted DMCI to the task of proving the voluntariness of the resignation. It was obvious that, if his claim was true, then he did not fully comprehend the import of the letter, rendering the resignation farcical . . . Under the circumstances, DMCI became burdened with the obligation to prove the due execution and genuineness of the document as a letter of resignation.
We reiterate that it is axiomatic in labor law that the employer who interposes the defense of voluntary resignation of the employee in an illegal dismissal case must prove by clear, positive, and convincing evidence that the resignation was voluntary; and that the employer cannot rely on the weakness of the defense of the employee.
The requirement rests on the need to resolve any doubt in favor of the workingman (D.M. Consunji Corporation v. Bello, G.R. No 159371, 29 July 2013, J. Bersamin).
source: Manila Times Column of Benchpress
Paternity leave benefits for probationary employees
Dear PAO,
I started working as a probationary employee in one of the companies here in Cebu. My wife is about to give birth to our second child. Upon inquiry with our HR, I was informed that I can avail of the 7-day paternity leave but without pay because of my employment status. Is this correct? Based on my research, my employment status is not material in order for me to avail of the leave benefits. Please advice.
JPS
Dear JPS,
Private employees are granted numerous benefits under the Labor Code of the Philippines as well as other pertinent labor laws. One of which is paternity leave. It is the seven (7)-day leave with full pay consisting of basic salary.
However, not all employees may avail of such benefit. As provided for under Republic Act (R.A.) No. 8187, otherwise known as the “Paternity Leave Act of 1996,” only married male employees, whether they be in the private and public sectors, shall be entitled to paternity leave, provided that it is the first four (4) deliveries or miscarriages of their respective legitimate spouses with whom they are cohabiting. In addition, the male employees applying for the same must notify their respective employers of the pregnancy of their legitimate spouses and the expected date of such delivery (Section 2, R.A. No. 8187).
In the situation that you have presented before us, it is submitted that your employer should grant you the seven (7)-day leave with full pay if you have met the above-stated qualifications. The fact that your employment status is still probationary should not be a hindrance for you to be granted such benefit because Republic Act No. 8187 does not limit the grant of said benefit only to regular employees. And when the law makes no distinctions, one should not distinguish.
Furthermore, Section 1 (b) of the Revised Implementing Rules and Regulations of Republic Act No. 8187 for the Private Sector defines the term “employee” in a general sense. As provided therein, an “employee” is “any person who performs services for another and receives compensation therefor, provided an employer-employee relationship exists between them.”
If you were able to establish that you are entitled to paternity leave benefit but your company still refuses to grant you the same, you may consider filing a complaint against them. The responsible officers of your company, if found to have violated the provisions of Republic Act No. 8187, may be penalized by a fine not exceeding Twenty Five Thousand Pesos (P25,000.00) or imprisonment of not less than thirty (30) days nor more than six (6) months (Section 5, RA No. 8187).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times Column of Atty. Persida Acosta
I started working as a probationary employee in one of the companies here in Cebu. My wife is about to give birth to our second child. Upon inquiry with our HR, I was informed that I can avail of the 7-day paternity leave but without pay because of my employment status. Is this correct? Based on my research, my employment status is not material in order for me to avail of the leave benefits. Please advice.
JPS
Dear JPS,
Private employees are granted numerous benefits under the Labor Code of the Philippines as well as other pertinent labor laws. One of which is paternity leave. It is the seven (7)-day leave with full pay consisting of basic salary.
However, not all employees may avail of such benefit. As provided for under Republic Act (R.A.) No. 8187, otherwise known as the “Paternity Leave Act of 1996,” only married male employees, whether they be in the private and public sectors, shall be entitled to paternity leave, provided that it is the first four (4) deliveries or miscarriages of their respective legitimate spouses with whom they are cohabiting. In addition, the male employees applying for the same must notify their respective employers of the pregnancy of their legitimate spouses and the expected date of such delivery (Section 2, R.A. No. 8187).
In the situation that you have presented before us, it is submitted that your employer should grant you the seven (7)-day leave with full pay if you have met the above-stated qualifications. The fact that your employment status is still probationary should not be a hindrance for you to be granted such benefit because Republic Act No. 8187 does not limit the grant of said benefit only to regular employees. And when the law makes no distinctions, one should not distinguish.
Furthermore, Section 1 (b) of the Revised Implementing Rules and Regulations of Republic Act No. 8187 for the Private Sector defines the term “employee” in a general sense. As provided therein, an “employee” is “any person who performs services for another and receives compensation therefor, provided an employer-employee relationship exists between them.”
If you were able to establish that you are entitled to paternity leave benefit but your company still refuses to grant you the same, you may consider filing a complaint against them. The responsible officers of your company, if found to have violated the provisions of Republic Act No. 8187, may be penalized by a fine not exceeding Twenty Five Thousand Pesos (P25,000.00) or imprisonment of not less than thirty (30) days nor more than six (6) months (Section 5, RA No. 8187).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times Column of Atty. Persida Acosta
Tuesday, September 24, 2013
Restrictive covenants in employment contracts
ONE OF the means to keep afloat in today’s
competitive market is to hire employees who are “fit” for a particular
job. However, before employers may tap the full potential of their
employees, the former are expected to invest much time, effort and money
in honing their skills and perfecting their work proficiency. In fact,
some employers even send their employees abroad and pay all necessary
expenses for their training and professional growth.
But then, reality bites, because after acquiring the needed experience and expertise, the employee may leave the company due to tempting offers and fat bonuses dangled by another competitor company. What is even worse is when this employee starts to solicit the services of his colleagues and brings the whole team with him to the competitor company.
So as to mitigate, if not end, the ill effects of the above practice, employers may explore the possibility of providing restrictive covenants in their employment contracts to regulate the post-employment action and activity of their employees. These restrictive covenants are express contractual terms, which bind an employee to comply with the restraint agreed and stipulated upon, and prevent him from taking certain action/s when he leaves the company.
Restrictive covenants may include: (a) non-competition/non-compete clause -- when the employee is prevented from directly competing or working for a competitor of his former employer, or when the employee is prevented from setting up a competing business; (b) non-solicitation clause -- when a duty is imposed on the employee not to approach his former employer’s customers or prospective customers, or when the employee is prevented from taking customers/clients of his former employer; and (c) non-poaching clause -- when the employee is prevented from enticing his former employer’s staff away from the business, the aim is to prevent the employee from taking key employees with him to his new employment or business.
The validity of restrictive covenants, such as those mentioned above, is anchored on law and applicable jurisprudence.
Thus, the employer and the employee may establish such stipulations, clauses, terms, and conditions as they may deem convenient (Art. 1306, Civil Code), and that the obligations arising from the agreement between the employer and the employee have the force of law between them and should be complied with in good faith (Art. 1159, Civil Code) (Oxales v. United Laboratories, Inc. [G.R. No. 152991, 21 July 2008]).
Likewise, restrictive covenants are enforceable in this jurisdiction, unless they are unreasonable. And in order to determine whether restrictive covenants are reasonable or not, the following factors should be considered: (a) whether the covenant protects a legitimate business interest of the employer; (b) whether the covenant creates an undue burden on the employee; (c) whether the covenant is injurious to the public welfare; (d) whether the time and territorial limitations contained in the covenant are reasonable; and (e) whether the restraint is reasonable from the standpoint of public policy (Rivera v. Solidbank Corp. [G.R. No. 163269, 19 April 2006]).
Restrictive covenants are not necessarily void for being in restraint of trade. In deciding to include a restrictive covenant in the employment contract, employers must see to it that there are reasonable limitations as to time, trade and place (Tiu v. Platinum Plans Phils., Inc. [G.R. No. 163512, 28 February 2007]).
To concretize, a non-compete clause in the employment contract of an engineer working in an I.T. firm, cannot prohibit the said engineer from working in another I.T. firm during his entire lifetime. Neither can the said non-compete clause validly prohibit the engineer from working in another trade (e.g. mining, construction, etc.), which is not at all connected with the I.T. industry, nor can he be prohibited from working in all I.T. firms in the Philippines. Under any such circumstance, since there is no “reasonable limitation as to time, trade and place,” the restrictive covenant will be struck down for being violative of public policy.
Employers, however, must realize that even a carefully drafted restrictive covenant is not a cure-all remedy. Undeterred employees will simply leave as soon as they can find new employers who will gamble more on their experience and expertise, rather than honoring the restrictions. If it reaches this point, the resolve of the aggrieved employer will be tested in enforcing the restrictive covenants, more so that other employees are merely waiting for the employer’s move, until such time that they themselves are also ready to test the hot waters.
(The author is a Senior Associate of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW), Cebu Branch. He can be contacted at (6332) 231-4223 or e-mail address: evsolengjr@accralaw.com. The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes only and not offered as and does not constitute legal advice or legal opinion.)
source : Businessworld
But then, reality bites, because after acquiring the needed experience and expertise, the employee may leave the company due to tempting offers and fat bonuses dangled by another competitor company. What is even worse is when this employee starts to solicit the services of his colleagues and brings the whole team with him to the competitor company.
So as to mitigate, if not end, the ill effects of the above practice, employers may explore the possibility of providing restrictive covenants in their employment contracts to regulate the post-employment action and activity of their employees. These restrictive covenants are express contractual terms, which bind an employee to comply with the restraint agreed and stipulated upon, and prevent him from taking certain action/s when he leaves the company.
Restrictive covenants may include: (a) non-competition/non-compete clause -- when the employee is prevented from directly competing or working for a competitor of his former employer, or when the employee is prevented from setting up a competing business; (b) non-solicitation clause -- when a duty is imposed on the employee not to approach his former employer’s customers or prospective customers, or when the employee is prevented from taking customers/clients of his former employer; and (c) non-poaching clause -- when the employee is prevented from enticing his former employer’s staff away from the business, the aim is to prevent the employee from taking key employees with him to his new employment or business.
The validity of restrictive covenants, such as those mentioned above, is anchored on law and applicable jurisprudence.
Thus, the employer and the employee may establish such stipulations, clauses, terms, and conditions as they may deem convenient (Art. 1306, Civil Code), and that the obligations arising from the agreement between the employer and the employee have the force of law between them and should be complied with in good faith (Art. 1159, Civil Code) (Oxales v. United Laboratories, Inc. [G.R. No. 152991, 21 July 2008]).
Likewise, restrictive covenants are enforceable in this jurisdiction, unless they are unreasonable. And in order to determine whether restrictive covenants are reasonable or not, the following factors should be considered: (a) whether the covenant protects a legitimate business interest of the employer; (b) whether the covenant creates an undue burden on the employee; (c) whether the covenant is injurious to the public welfare; (d) whether the time and territorial limitations contained in the covenant are reasonable; and (e) whether the restraint is reasonable from the standpoint of public policy (Rivera v. Solidbank Corp. [G.R. No. 163269, 19 April 2006]).
Restrictive covenants are not necessarily void for being in restraint of trade. In deciding to include a restrictive covenant in the employment contract, employers must see to it that there are reasonable limitations as to time, trade and place (Tiu v. Platinum Plans Phils., Inc. [G.R. No. 163512, 28 February 2007]).
To concretize, a non-compete clause in the employment contract of an engineer working in an I.T. firm, cannot prohibit the said engineer from working in another I.T. firm during his entire lifetime. Neither can the said non-compete clause validly prohibit the engineer from working in another trade (e.g. mining, construction, etc.), which is not at all connected with the I.T. industry, nor can he be prohibited from working in all I.T. firms in the Philippines. Under any such circumstance, since there is no “reasonable limitation as to time, trade and place,” the restrictive covenant will be struck down for being violative of public policy.
Employers, however, must realize that even a carefully drafted restrictive covenant is not a cure-all remedy. Undeterred employees will simply leave as soon as they can find new employers who will gamble more on their experience and expertise, rather than honoring the restrictions. If it reaches this point, the resolve of the aggrieved employer will be tested in enforcing the restrictive covenants, more so that other employees are merely waiting for the employer’s move, until such time that they themselves are also ready to test the hot waters.
(The author is a Senior Associate of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW), Cebu Branch. He can be contacted at (6332) 231-4223 or e-mail address: evsolengjr@accralaw.com. The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes only and not offered as and does not constitute legal advice or legal opinion.)
source : Businessworld
Wednesday, August 21, 2013
House helpers in Metro Manila get P2,500 monthly pay
Dear PAO,
What is the minimum wage for house helpers? What other benefits do employers need to give their house helpers? Are those helpers who are not “stay-in” included?
Sincerely,
George
Dear George,
As provided for under Section 24 of Republic Act (R.A.) No. 10361, otherwise known as the Domestic Workers Act or Batas Kasambahay, domestic workers are entitled to the following minimum wage: (a) Two Thousand Five Hundred Pesos (P2,500.00) a month for those employed in the National Capital Region (NCR); (b) Two Thousand Pesos (P2,000.00) a month for those employed in chartered cities and first class municipalities; and (c) One Thousand Five Hundred Pesos (P1,500.00) a month for those employed in other municipalities.
Aside from the grant of minimum wage, domestic workers are entitled to receive the following benefits from their employers: (1) Daily and weekly rest period; (2) Annual service incentive leave of five days with pay for those who have rendered at least one year of service; (3) Thirteenth month pay which is not less than one-twelfth of the basic salary for those who have rendered at least one month of service; (4) Coverage under the Social Security System (SSS), Employees Compensation Commission (ECC), Philippine Health Insurance Corporation (Philhealth) and Home Development Mutual Fund or Pag-Ibig; and (5) Board, lodging and medical attendance (Section 1, Rule IV, Implementing Rules and Regulations (IRR) of R. A. No. 10361).
In addition, domestic workers are guaranteed the following: (1) Right to privacy; (2) Right to form, join or assist labor organizations; (3) Right to be provided a copy of the employment contract; (4) Right to terminate the employment; (5) Right to exercise their own religious beliefs and cultural practices; (6) Right to access to outside communication; (7) Right to access to education and training; and (8) Standard of treatment (Section 1, Rule IV, IRR of R. A. No. 10361).
It is worth emphasizing that the grant of the aforementioned benefits applies not only to those domestic workers who are “stay-in” or living in the same house as their employers, but also to those who are in a “live-out” arrangement. This includes general househelp, yaya, cook, gardener, laundry person, or any person who regularly performs domestic work in one household on occupational basis. However, service providers, family drivers, children under foster family arrangement, as well as any other person who performs work occasionally or sporadically and not on an occupational basis are not entitled to the said benefits (Section 2, Rule I, IRR of R. A. No. 10361).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Source: Manila Times Column of Atty Persida Acosta
What is the minimum wage for house helpers? What other benefits do employers need to give their house helpers? Are those helpers who are not “stay-in” included?
Sincerely,
George
Dear George,
As provided for under Section 24 of Republic Act (R.A.) No. 10361, otherwise known as the Domestic Workers Act or Batas Kasambahay, domestic workers are entitled to the following minimum wage: (a) Two Thousand Five Hundred Pesos (P2,500.00) a month for those employed in the National Capital Region (NCR); (b) Two Thousand Pesos (P2,000.00) a month for those employed in chartered cities and first class municipalities; and (c) One Thousand Five Hundred Pesos (P1,500.00) a month for those employed in other municipalities.
Aside from the grant of minimum wage, domestic workers are entitled to receive the following benefits from their employers: (1) Daily and weekly rest period; (2) Annual service incentive leave of five days with pay for those who have rendered at least one year of service; (3) Thirteenth month pay which is not less than one-twelfth of the basic salary for those who have rendered at least one month of service; (4) Coverage under the Social Security System (SSS), Employees Compensation Commission (ECC), Philippine Health Insurance Corporation (Philhealth) and Home Development Mutual Fund or Pag-Ibig; and (5) Board, lodging and medical attendance (Section 1, Rule IV, Implementing Rules and Regulations (IRR) of R. A. No. 10361).
In addition, domestic workers are guaranteed the following: (1) Right to privacy; (2) Right to form, join or assist labor organizations; (3) Right to be provided a copy of the employment contract; (4) Right to terminate the employment; (5) Right to exercise their own religious beliefs and cultural practices; (6) Right to access to outside communication; (7) Right to access to education and training; and (8) Standard of treatment (Section 1, Rule IV, IRR of R. A. No. 10361).
It is worth emphasizing that the grant of the aforementioned benefits applies not only to those domestic workers who are “stay-in” or living in the same house as their employers, but also to those who are in a “live-out” arrangement. This includes general househelp, yaya, cook, gardener, laundry person, or any person who regularly performs domestic work in one household on occupational basis. However, service providers, family drivers, children under foster family arrangement, as well as any other person who performs work occasionally or sporadically and not on an occupational basis are not entitled to the said benefits (Section 2, Rule I, IRR of R. A. No. 10361).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Source: Manila Times Column of Atty Persida Acosta
Saturday, July 27, 2013
Who are seasonal employees?
In a small town in Negros Oriental, employees formed a labor union.
Their employer (Hacienda) owned a sugarcane plantation and did not favor
employees associated to unions and refused to negotiate with the labor
union to discuss the collective bargaining agreement between the
hacienda and the laborers. The hacienda did not give work to 36
employees for more than a month, which led to the employees staging a
strike. Issues were temporarily settled when the hacienda and union
entered into a Memorandum of Agreement (MOA). Unfortunately, the MOA was
not followed and the hacienda even employed armed guards to ensure that
the employees could not enter the premises.
With the assistance of Department of Labor and Employment, another MOA was reached. The employees were supposed to be reinstated upon availability of work but the hacienda reneged on its commitment once again. Hence, a case for illegal dismissal was filed with the National Labor Relations Commission (NLRC). In the hacienda’s defense, it argued that the employees were merely seasonal employers and not regular employees who could file a case of illegal dismissal.
The NLRC ruled that the hacienda illegally dismissed its employees who were deemed regular employees since they performed the same task for several years. The Court of Appeals (CA) affirmed the NLRC’s decision -
[W]hile the work of (employees) was seasonal in nature, they were considered to be merely on leave during the off-season and were therefore still employed by (hacienda). Moreover, the workers enjoyed security of tenure. Any infringement upon this right was deemed by the CA to be tantamount to illegal dismissal.
The Supreme Court agreed with the CA, holding that the refusal of the hacienda to “make use of the services of their employees, even when they were ready, able, and willing to perform their usual duties whenever these were available, and hiring of other workers to perform the tasks originally assigned to (them) amounted to illegal dismissal of the latter.”
Article 280 of the Labor Code provides for the distinction between regular and seasonal employees -
[a]n employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.
The Court clarified that in order to be classified as a seasonal worker, and excluded from the classification of regular employees, one must perform work or services that are seasonal in nature and be employed only for the duration of one season.
On the other hand, regular employees include seasonal employees who continuously and repeatedly perform a particular nature of work as it is “sufficient evidence of the necessity if not indispensability of that activity to the business.” The employment is considered regular only with respect to the activity and while such activity exists.
Citing De Leon v. NLRC, “this Court has already settled that seasonal workers who are called to work from time to time and are temporarily laid off during off-season are not separated from service in said period, but merely considered on leave until re-employed” (Hacienda Fatima v. National Federation of Sugarcane Workers-Food and General Trade, G.R. No. 149440, 28 January 2003, J. Panganiban).
source: Manila Times' Column of Benchpress
With the assistance of Department of Labor and Employment, another MOA was reached. The employees were supposed to be reinstated upon availability of work but the hacienda reneged on its commitment once again. Hence, a case for illegal dismissal was filed with the National Labor Relations Commission (NLRC). In the hacienda’s defense, it argued that the employees were merely seasonal employers and not regular employees who could file a case of illegal dismissal.
The NLRC ruled that the hacienda illegally dismissed its employees who were deemed regular employees since they performed the same task for several years. The Court of Appeals (CA) affirmed the NLRC’s decision -
[W]hile the work of (employees) was seasonal in nature, they were considered to be merely on leave during the off-season and were therefore still employed by (hacienda). Moreover, the workers enjoyed security of tenure. Any infringement upon this right was deemed by the CA to be tantamount to illegal dismissal.
The Supreme Court agreed with the CA, holding that the refusal of the hacienda to “make use of the services of their employees, even when they were ready, able, and willing to perform their usual duties whenever these were available, and hiring of other workers to perform the tasks originally assigned to (them) amounted to illegal dismissal of the latter.”
Article 280 of the Labor Code provides for the distinction between regular and seasonal employees -
[a]n employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.
The Court clarified that in order to be classified as a seasonal worker, and excluded from the classification of regular employees, one must perform work or services that are seasonal in nature and be employed only for the duration of one season.
On the other hand, regular employees include seasonal employees who continuously and repeatedly perform a particular nature of work as it is “sufficient evidence of the necessity if not indispensability of that activity to the business.” The employment is considered regular only with respect to the activity and while such activity exists.
Citing De Leon v. NLRC, “this Court has already settled that seasonal workers who are called to work from time to time and are temporarily laid off during off-season are not separated from service in said period, but merely considered on leave until re-employed” (Hacienda Fatima v. National Federation of Sugarcane Workers-Food and General Trade, G.R. No. 149440, 28 January 2003, J. Panganiban).
source: Manila Times' Column of Benchpress
Monday, July 15, 2013
Legality of work stoppage
In sympathy with the labor sector that staged a welga ng bayan to
protest the accelerating prices of oil, the officers of two labor unions
staged a work stoppage that lasted for several days. The companies of
these labor unions filed a petition with the Labor Arbiter to declare
the work stoppage illegal for failure to comply with the following
requirements: (1) filing of notice of strike; (2) securing a strike
vote, and (3) submission of a report of the strike vote to the
Department of Labor and Employment.
The officers of the labor unions, on the other hand, countered that they did comply with the necessary requirements. And, they were prevented from going to work due to the difficulties of finding transportation to work and were concerned for their safety if in case violence erupted as a result of the welga. Also, the workers were prevented from reporting for work by being locked out of the office premises.
The Labor Arbiter held that the strike was illegal. Thus, the officers of the labor unions lost their employment status and were eventually terminated by their employers.
On appeal, the National Labor Relations Commission (NLRC) reversed the Labor Arbiter and held that there was no strike due to the fact that there was no labor dispute between the employers and the employees. Thus, the employees were ordered to be reinstatement, without loss of seniority rights, and with full back wages from the date of their termination.
The Court of Appeals (CA) however reverted to the ruling of the Labor Arbiter that the employees failed to prove their compliance with the requirements of a legal strike. In fact, they never produced before the Labor Arbiter a copy
The Supreme Court (SC) sustained the ruling of the CA that an illegal strike did take place. Because the employees were not able to prove that they informed their employers of their intention to join the welga ng bayan, their work stoppage was not entitled to legal protection -
Stoppage of work due to welga ng bayan is in the nature of a general strike, an extended sympathy strike. It affects numerous employers including those who do not have a dispute with their employees regarding their terms and conditions of employment. Employees who have no labor dispute with their employer but who, on a day they are scheduled to work, refuse to work and instead join a welga ng bayan commit an illegal work stoppage.
Moreover, the SC ruled that union officers must bear the consequences of their actions when they knowingly participate in an illegal strike.
Article 264 (a) of the Labor Code clearly provides that “any union officer who knowingly participates in an illegal strike may be declared to have lost his employment status.” It reiterated that in Gold City Integrated Port Service, Inc. v. National Labor Relations Commission, the word “may” in Article 264 (a) was explained and implies that “[t]he law . . . grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his employment.” Thus, the reinstatement or retention of the striker’s employment, despite his participation in an illegal strike, is a management prerogative the Court will not question (Biflex Phils. Labor Union v. Filflex Industrial and Manufacturing Corp, G.R. No. 155679, 19 December 2006, J. Carpio-Morales).
source: Manila Times' Column of Benchpress
The officers of the labor unions, on the other hand, countered that they did comply with the necessary requirements. And, they were prevented from going to work due to the difficulties of finding transportation to work and were concerned for their safety if in case violence erupted as a result of the welga. Also, the workers were prevented from reporting for work by being locked out of the office premises.
The Labor Arbiter held that the strike was illegal. Thus, the officers of the labor unions lost their employment status and were eventually terminated by their employers.
On appeal, the National Labor Relations Commission (NLRC) reversed the Labor Arbiter and held that there was no strike due to the fact that there was no labor dispute between the employers and the employees. Thus, the employees were ordered to be reinstatement, without loss of seniority rights, and with full back wages from the date of their termination.
The Court of Appeals (CA) however reverted to the ruling of the Labor Arbiter that the employees failed to prove their compliance with the requirements of a legal strike. In fact, they never produced before the Labor Arbiter a copy
The Supreme Court (SC) sustained the ruling of the CA that an illegal strike did take place. Because the employees were not able to prove that they informed their employers of their intention to join the welga ng bayan, their work stoppage was not entitled to legal protection -
Stoppage of work due to welga ng bayan is in the nature of a general strike, an extended sympathy strike. It affects numerous employers including those who do not have a dispute with their employees regarding their terms and conditions of employment. Employees who have no labor dispute with their employer but who, on a day they are scheduled to work, refuse to work and instead join a welga ng bayan commit an illegal work stoppage.
Moreover, the SC ruled that union officers must bear the consequences of their actions when they knowingly participate in an illegal strike.
Article 264 (a) of the Labor Code clearly provides that “any union officer who knowingly participates in an illegal strike may be declared to have lost his employment status.” It reiterated that in Gold City Integrated Port Service, Inc. v. National Labor Relations Commission, the word “may” in Article 264 (a) was explained and implies that “[t]he law . . . grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his employment.” Thus, the reinstatement or retention of the striker’s employment, despite his participation in an illegal strike, is a management prerogative the Court will not question (Biflex Phils. Labor Union v. Filflex Industrial and Manufacturing Corp, G.R. No. 155679, 19 December 2006, J. Carpio-Morales).
source: Manila Times' Column of Benchpress
Friday, June 28, 2013
Dismissal must be based on willful breach of trust
A bank manager was promoted to the position of vice president of
Allied Business Ventures Department of the bank after just five years.
When one of the bank’s branch managers resigned, the VP was asked to sign the branch manager’s standard employment clearance pertaining to the latter’s accountabilities with the bank. The VP, however, issued a clearance only for the branch manager’s paid cash advances and salary loan, after being shown receipts by the bank’s cashier.
Seven months later, the VP was informed that the resigned bank manager was involved in a questionable transaction involving P11 million for which the bank was being sued. Because the clearance issued by the VP effectively barred the bank from going after the bank manager, the bank terminated the services of the VP for loss of trust and confidence as was demanded by his position.
Aggrieved, the VP filed a complaint for illegal dismissal. He insisted that there was a plot to oust him from his position, which was why they blamed him for clearing all of the bank manager’s financial clearances even though he only cleared the latter for paid cash advances and salary loan. The reasoning that there was loss of trust and confidence was a mere afterthought given the gap between the issuance of the clearance and the bank firing him, he said.
The Labor Arbiter ruled in favor of the VP holding that the act of issuing the clearance was not a valid and justifiable ground for the bank to lose trust and confidence in him.
The Labor Arbiter was affirmed by the National Labor Relations Commission (NLRC).
The Court of Appeals however held that the VP was dismissed for just cause as “he failed to exercise prudence in clearing [the bank manager] of his accountabilities given that the same were yet to be audited.”
On appeal, the Supreme Court (SC) affirmed the Labor Arbiter and the NLRC, and found that the VP was illegally dismissed. First, it explained the rules on a dismissal based on willful breach of loss and confidence -
As provided in Article 282 of the Labor Code, an employer has the right to dismiss an employee by reason of willful breach of the trust and confidence reposed in him. To temper the exercise of such prerogative, the law imposes the burden of proof upon the employer to show that the dismissal of the employee is for just cause failing which would mean that the dismissal is not justified.
The law mandates that before validity can be accorded to a dismissal premised on loss of trust and confidence, two requisites must concur, viz: (1) the employee concerned must be holding a position of trust; and (2) the loss of trust must be based on willful breach of trust founded on clearly established facts.
Although the VP held a position of trust, the SC ruled that the act of issuing the clearance could not be considered a willful breach of that trust -
The Court has repeatedly emphasized that the act that breached the trust must be willful such that it was done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.
The conditions under which the clearance was issued exclude any finding of deliberate or conscious effort on the part of the petitioner to prejudice his employer. Also, the petitioner did not commit an irregular or prohibited act. He did not falsify or misrepresent any company record as it was officially confirmed by [the cashier] (Torres v. Rural Bank of San Juan, G.R. No. 184520, 13 March 2013, J. Reyes).
source: Manila Times' Column Benchpress
When one of the bank’s branch managers resigned, the VP was asked to sign the branch manager’s standard employment clearance pertaining to the latter’s accountabilities with the bank. The VP, however, issued a clearance only for the branch manager’s paid cash advances and salary loan, after being shown receipts by the bank’s cashier.
Seven months later, the VP was informed that the resigned bank manager was involved in a questionable transaction involving P11 million for which the bank was being sued. Because the clearance issued by the VP effectively barred the bank from going after the bank manager, the bank terminated the services of the VP for loss of trust and confidence as was demanded by his position.
Aggrieved, the VP filed a complaint for illegal dismissal. He insisted that there was a plot to oust him from his position, which was why they blamed him for clearing all of the bank manager’s financial clearances even though he only cleared the latter for paid cash advances and salary loan. The reasoning that there was loss of trust and confidence was a mere afterthought given the gap between the issuance of the clearance and the bank firing him, he said.
The Labor Arbiter ruled in favor of the VP holding that the act of issuing the clearance was not a valid and justifiable ground for the bank to lose trust and confidence in him.
The Labor Arbiter was affirmed by the National Labor Relations Commission (NLRC).
The Court of Appeals however held that the VP was dismissed for just cause as “he failed to exercise prudence in clearing [the bank manager] of his accountabilities given that the same were yet to be audited.”
On appeal, the Supreme Court (SC) affirmed the Labor Arbiter and the NLRC, and found that the VP was illegally dismissed. First, it explained the rules on a dismissal based on willful breach of loss and confidence -
As provided in Article 282 of the Labor Code, an employer has the right to dismiss an employee by reason of willful breach of the trust and confidence reposed in him. To temper the exercise of such prerogative, the law imposes the burden of proof upon the employer to show that the dismissal of the employee is for just cause failing which would mean that the dismissal is not justified.
The law mandates that before validity can be accorded to a dismissal premised on loss of trust and confidence, two requisites must concur, viz: (1) the employee concerned must be holding a position of trust; and (2) the loss of trust must be based on willful breach of trust founded on clearly established facts.
Although the VP held a position of trust, the SC ruled that the act of issuing the clearance could not be considered a willful breach of that trust -
The Court has repeatedly emphasized that the act that breached the trust must be willful such that it was done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.
The conditions under which the clearance was issued exclude any finding of deliberate or conscious effort on the part of the petitioner to prejudice his employer. Also, the petitioner did not commit an irregular or prohibited act. He did not falsify or misrepresent any company record as it was officially confirmed by [the cashier] (Torres v. Rural Bank of San Juan, G.R. No. 184520, 13 March 2013, J. Reyes).
source: Manila Times' Column Benchpress
Tuesday, June 18, 2013
When loss of confidence is valid ground for dismissal
An alleged Certified Public Accountant (CPA) has been working as a
chief accountant in a credit corporation for three years. It was only
after this time that the credit corporation found out that she was not a
CPA and misrepresented herself as one in her application and personal
data sheet. She was also supposedly helping pirate employees of the
credit corporation for a rival corporation. After confronting her, the
credit corporation deemed it best to let her go that same day. When she
tried to collect her belongings the very next day, she was no longer
allowed to enter the premises.
The accountant filed a case for illegal dismissal with the National Labor Relations Commission (NLRC), where the Labor Arbiter ruled that she had been illegally dismissed and that her dismissal was done in violation of due process requirements. On appeal, the NLRC found that there was no illegal dismissal as the parties entered into a compromise agreement where the accountant would voluntarily resign in exchange for separation benefits. This decision was affirmed by the Court of Appeals.
The Supreme Court (SC) overturned the CA, holding that there was nothing in the records to prove that the accountant had voluntarily resigned from her position in the company. It further ruled that there was no illegal dismissal despite the company’s failure to follow the two-notice rule.
Article 282 of the Labor Code provides that an employer may terminate an employment for fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative.
The Court made a distinction between managerial and rank and file employees when it comes to the termination of employees based on breach of trust. For managerial employees, the mere existence that there is basis to believe that such employee has breached the trust of the employer would suffice his dismissal. For rank and file employees, proof of involvement in the alleged events in question is necessary. The accountant, being a managerial employee, was validly terminated for loss of confidence -
In securing this position, she fraudaulently misrepresented her personal qualifications by stating in her Personal Information Sheet that she was a CPA… [t]his deceitful action alone was sufficient basis for respondent’s loss of confidence in her as a managerial employee.
The SC, however, explained that in labor cases, the existence of just cause is not enough to comply with procedural due process.
In the case of termination by the employer, it is not enough that there exists a just cause therefor, as procedural due process dictates compliance with the two-notice rule in effecting a dismissal: (a) the employer must inform the employee of the specific acts or omissions for which his dismissal is sought, and (b) the employer must inform him of the decision to terminate employment after affording the latter the opportunity to be heard.
Despite the existence of a just cause for termination, the accountant was dismissed from service in violation of procedural due process, because she did not receive any notice of her termination and was fired on the spot. Nevertheless, the failure to comply with procedural due process does not render a dismissal for valid cause illegal. Instead, the employees remedy is to be granted damages.
It is evident that although there was a just cause in terminating the services of Mendoza, respondents were amiss in complying with the two-notice requirement. Following prevailing jurisprudence on the matter, if the dismissal is based on just cause, then the non-compliance with non-procedural due process should not render the termination from employement illegal or ineffectual. Instead, the employer must indemnify the employee in the form of nominal damages (Mendoza v. HMS Credit Corporation, G.R. No. 187232, 17 April 2013, C.J. Sereno).
source: Manila Times' Column by Benchpress
The accountant filed a case for illegal dismissal with the National Labor Relations Commission (NLRC), where the Labor Arbiter ruled that she had been illegally dismissed and that her dismissal was done in violation of due process requirements. On appeal, the NLRC found that there was no illegal dismissal as the parties entered into a compromise agreement where the accountant would voluntarily resign in exchange for separation benefits. This decision was affirmed by the Court of Appeals.
The Supreme Court (SC) overturned the CA, holding that there was nothing in the records to prove that the accountant had voluntarily resigned from her position in the company. It further ruled that there was no illegal dismissal despite the company’s failure to follow the two-notice rule.
Article 282 of the Labor Code provides that an employer may terminate an employment for fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative.
The Court made a distinction between managerial and rank and file employees when it comes to the termination of employees based on breach of trust. For managerial employees, the mere existence that there is basis to believe that such employee has breached the trust of the employer would suffice his dismissal. For rank and file employees, proof of involvement in the alleged events in question is necessary. The accountant, being a managerial employee, was validly terminated for loss of confidence -
In securing this position, she fraudaulently misrepresented her personal qualifications by stating in her Personal Information Sheet that she was a CPA… [t]his deceitful action alone was sufficient basis for respondent’s loss of confidence in her as a managerial employee.
The SC, however, explained that in labor cases, the existence of just cause is not enough to comply with procedural due process.
In the case of termination by the employer, it is not enough that there exists a just cause therefor, as procedural due process dictates compliance with the two-notice rule in effecting a dismissal: (a) the employer must inform the employee of the specific acts or omissions for which his dismissal is sought, and (b) the employer must inform him of the decision to terminate employment after affording the latter the opportunity to be heard.
Despite the existence of a just cause for termination, the accountant was dismissed from service in violation of procedural due process, because she did not receive any notice of her termination and was fired on the spot. Nevertheless, the failure to comply with procedural due process does not render a dismissal for valid cause illegal. Instead, the employees remedy is to be granted damages.
It is evident that although there was a just cause in terminating the services of Mendoza, respondents were amiss in complying with the two-notice requirement. Following prevailing jurisprudence on the matter, if the dismissal is based on just cause, then the non-compliance with non-procedural due process should not render the termination from employement illegal or ineffectual. Instead, the employer must indemnify the employee in the form of nominal damages (Mendoza v. HMS Credit Corporation, G.R. No. 187232, 17 April 2013, C.J. Sereno).
source: Manila Times' Column by Benchpress
Thursday, April 18, 2013
Husband can provide support if he has financial capacity
Dear PAO,
My husband and I are legally married. When our daughter was about 1 year and 5 months old, my husband started to have a “textmate.” He used to come home late and there were days that he never came home at all. He neglected us and we would fight about this. Now, my husband filed a petition for the annulment of our marriage because his girlfriend wants to take him with her in the USA. Can I ask support from my husband because I am jobless? He too has no work but his girlfriend works in the USA as a nurse. Can I demand support from his girlfriend? I hope you can advise me on this matter.
HM
Dear HM,
It is not right for your husband to maintain a relationship with another woman while the two of you are still married because it is his obligation, as much as yours, to remain faithful all through out your marriage. This is enshrined under Article 68 of the Family Code of the Philippines, which states that: “The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.”
Nevertheless, your husband may opt to file a petition for annulment of marriage before the court if he has a legal ground, which may be any of the following: (1) he was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of his parents, guardian or person having substitute parental authority over the party, in that order; (2) he was of unsound mind at the time of the celebration of the marriage; (3) his consent was obtained by fraud; (4) either of you is physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (5) either of you is afflicted with a sexually-transmissible disease found to be serious and appears to be incurable (Article 45, id).
Nonetheless, you and your daughter may demand support from him. As provided for under the law, spouses are obliged to support each other. In the same token, parents and their legitimate children are obliged to provide mutual support (Article195, id). However, you have to take into consideration the fact that your husband does not have a job, as you mentioned in your letter. Such fact may excuse him, for the time being, from giving you and your daughter financial support. Nevertheless, he may be required to provide support once he has the financial capacity to do so (Article 201 in relation to Article 202, id).
Insofar as your desire to demand support from the girlfriend of your husband, we humbly submit that the same is not legally possible. The said person has no legal obligation to provide support. When Article 195 of the Family Code speaks of obligation to provide support, it is only confined to the following persons: (1) the spouses; (2) legitimate ascendants and descendants; (3) parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) legitimate brothers and sisters, whether of full or half-blood.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times Column of
Wednesday, April 17, 2013
Written contract of employment not mandatory
Dear PAO,
Is it necessary to have a written contract of employment to be considered employed?
Ruth
Dear Ruth,
A written contract of employment is a written agreement entered into between the employer and the employee wherein the former hires the latter for the performance of a service or a job for a stipulated wage or salary. A contract of employment also sets forth the different terms and conditions that shall be observed during the period of employment. However, a written contract of employment is not a mandatory requirement for one to be considered employed. At the most, it shall only be treated as one of the best evidence to prove one’s employment considering that it is in writing and signed by both the employer and the employee.
In a long line of cases, the Supreme Court of the Philippines has set forth the elements that are generally considered in determining the existence of employer-employee relationship. These are the following: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished (Brotherhood Labor Unity Movement of the Philippines vs. Zamora, GR No. L-48645, January 07, 1987; People’s Broadcasting Service vs. Secretary of Labor, GR No. 179652, March 06, 2012; Tiu vs. NLRC, GR No. 95845, February 21, 1996). Among the four tests, the control test is considered as the most important element. However, not all kinds of control exerted over another have the effect of establishing employer-employee relationship. A distinction should be made between the form of control or rules that merely serve as guidelines towards the achievement of the mutually desired result without indicating the means or methods to be employed in attaining it and those that control or fix the methodology and bind or restrict the party hired to the use of such means in attaining the desired result. The first form does not create employer-employee relationship since it only aims to promote the result. On the other hand, the second form creates employer-employee relationship because it addresses both the result and the means to achieve it (Insular Life Assurance Co., Ltd. vs. NLRC, GR No. 84484, November 15, 1989.)
Based on the foregoing, a written contract of employment is not necessary for one to be considered employed. A person shall be considered as an employee of another if the aforementioned elements are present even if there is no written contract of employment.
source: Manila Times' Column by
Is it necessary to have a written contract of employment to be considered employed?
Ruth
Dear Ruth,
A written contract of employment is a written agreement entered into between the employer and the employee wherein the former hires the latter for the performance of a service or a job for a stipulated wage or salary. A contract of employment also sets forth the different terms and conditions that shall be observed during the period of employment. However, a written contract of employment is not a mandatory requirement for one to be considered employed. At the most, it shall only be treated as one of the best evidence to prove one’s employment considering that it is in writing and signed by both the employer and the employee.
In a long line of cases, the Supreme Court of the Philippines has set forth the elements that are generally considered in determining the existence of employer-employee relationship. These are the following: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished (Brotherhood Labor Unity Movement of the Philippines vs. Zamora, GR No. L-48645, January 07, 1987; People’s Broadcasting Service vs. Secretary of Labor, GR No. 179652, March 06, 2012; Tiu vs. NLRC, GR No. 95845, February 21, 1996). Among the four tests, the control test is considered as the most important element. However, not all kinds of control exerted over another have the effect of establishing employer-employee relationship. A distinction should be made between the form of control or rules that merely serve as guidelines towards the achievement of the mutually desired result without indicating the means or methods to be employed in attaining it and those that control or fix the methodology and bind or restrict the party hired to the use of such means in attaining the desired result. The first form does not create employer-employee relationship since it only aims to promote the result. On the other hand, the second form creates employer-employee relationship because it addresses both the result and the means to achieve it (Insular Life Assurance Co., Ltd. vs. NLRC, GR No. 84484, November 15, 1989.)
Based on the foregoing, a written contract of employment is not necessary for one to be considered employed. A person shall be considered as an employee of another if the aforementioned elements are present even if there is no written contract of employment.
source: Manila Times' Column by
Monday, April 15, 2013
Law mandates separated spouse to be faithful to partner
Dear PAO,
I have a boyfriend and we have been together for 6 years now. We have a 5-year-old daughter. We want to get married but we are not able to because my husband is already married. He has no communication with his wife, but
we know she also has a family of her own now. I really want us to get married. What is the best way for my boyfriend to have his marriage legally dissolved? Thank you and more power.
Maria
Dear Maria,
First and foremost, we would like to emphasize that you should not maintain a relationship with a married man. Your boyfriend is obliged under our laws to remain faithful to his wife. Furthermore, you may be held criminally liable if it is proven that you and your boyfriend are cohabiting with each other either in their conjugal dwelling or in some other place, or that the two of you are having sexual intercourse under scandalous circumstances (Article 334, Revised Penal Code).
If your boyfriend truly desires to marry you, he should first lawfully end his marriage with his wife. He may file a petition for declaration of absolute nullity of marriage or he may file a petition for annulment of marriage, as the case may be, before the Regional Trial Court of the place where he resides.
However, it is necessary that there be a legal basis for him to file such petition. Under the Family Code of the Philippines, the following are the grounds for the declaration of absolute nullity of marriage: (1) either party is below eighteen years of age even with the consent of parents or guardians; (2) marriage was solemnized by any person not legally authorized to perform marriages, unless it was contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) marriage was solemnized without license, except those allowed under the law; (4) bigamous or polygamous marriages not failing under Article 41; (5) marriage was contracted through mistake of one contracting party as to the identity of the other; (6) subsequent marriages that are void under Article 53; (7) either party was psychologically incapacitated to comply with the essential marital obligations of marriage at the time of the celebration of the marriage; (8) incestuous marriages; (9) marriages which are void from the beginning for reasons of public policy (Articles 35, 36, 37 and 38, Family Code of the Philippines).
Should your boyfriend wish to have his marriage annulled, he must prove the existence of any of the following grounds: (1) he was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of his parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, he freely cohabited with his wife; (2) either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; (3) consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other; (4) the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other; (5) either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable (Article 45, id).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column by
I have a boyfriend and we have been together for 6 years now. We have a 5-year-old daughter. We want to get married but we are not able to because my husband is already married. He has no communication with his wife, but
we know she also has a family of her own now. I really want us to get married. What is the best way for my boyfriend to have his marriage legally dissolved? Thank you and more power.
Maria
Dear Maria,
First and foremost, we would like to emphasize that you should not maintain a relationship with a married man. Your boyfriend is obliged under our laws to remain faithful to his wife. Furthermore, you may be held criminally liable if it is proven that you and your boyfriend are cohabiting with each other either in their conjugal dwelling or in some other place, or that the two of you are having sexual intercourse under scandalous circumstances (Article 334, Revised Penal Code).
If your boyfriend truly desires to marry you, he should first lawfully end his marriage with his wife. He may file a petition for declaration of absolute nullity of marriage or he may file a petition for annulment of marriage, as the case may be, before the Regional Trial Court of the place where he resides.
However, it is necessary that there be a legal basis for him to file such petition. Under the Family Code of the Philippines, the following are the grounds for the declaration of absolute nullity of marriage: (1) either party is below eighteen years of age even with the consent of parents or guardians; (2) marriage was solemnized by any person not legally authorized to perform marriages, unless it was contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) marriage was solemnized without license, except those allowed under the law; (4) bigamous or polygamous marriages not failing under Article 41; (5) marriage was contracted through mistake of one contracting party as to the identity of the other; (6) subsequent marriages that are void under Article 53; (7) either party was psychologically incapacitated to comply with the essential marital obligations of marriage at the time of the celebration of the marriage; (8) incestuous marriages; (9) marriages which are void from the beginning for reasons of public policy (Articles 35, 36, 37 and 38, Family Code of the Philippines).
Should your boyfriend wish to have his marriage annulled, he must prove the existence of any of the following grounds: (1) he was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of his parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, he freely cohabited with his wife; (2) either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; (3) consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other; (4) the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other; (5) either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable (Article 45, id).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
source: Manila Times' Column by
Sunday, April 14, 2013
Action for support against father whose whereabouts are unknown
Dear PAO,
I got married in April 2006. Four months thereafter, my husband abandoned me and our daughter. He never provided support. I saw on Facebook just recently that he already has a new family. I want to file an action for support but I do not know where he lives. I also want to know whether he and his girlfriend got married. Please advise me on what I should do.
Jo
Dear Jo,
You and your daughter have a right to demand support from your husband because it is a part of his obligation as your spouse and as the father of your child. Such obligation is clearly stated under Article 195 of the Family Code of the Philippines, which provides that, “x x x the following are obliged to support each other to the whole extent set forth in the preceding article: (1) The spouses; x x x (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; x x x”
Accordingly, you may file an action for support against him before the Regional Trial Court, acting as a Family Court, of the place where you and your daughter reside. You must particularly indicate in your claim your financial necessities as well as those of your daughter, whether it be for your sustenance, dwelling, clothing, medical attendance, education and transportation. You must likewise be able to prove that your husband has the financial capacity to provide for such necessities because according to Article 201, id: “The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient.”
It is worth mentioning that, while a case may be filed even if the complainant has no knowledge of the exact whereabouts of the respondent, it is still vital for the former to know such detail in order for the case to prosper swiftly. This is so because the respondent will be served with the pleadings and notices relative to the case he is facing in order to give him the opportunity to answer and raise his defenses. If his whereabouts is unknown, it may cause the delay of the proceedings. Thus, it is advisable for you to determine first where your husband is presently residing.
Insofar as your desire to know whether or not your husband and his alleged girlfriend got married, you may consider verifying with the National Statistics Office (NSO) as marriages entered into here in the Philippines are commonly registered with the NSO. However, be advised that the lack of record in the NSO is not a guarantee that they have not contracted marriage because it is possible that they entered into a contract of marriage but such fact was not registered with the office of the Local Civil Registrar or the NSO.
source: Manila Times' Column by
I got married in April 2006. Four months thereafter, my husband abandoned me and our daughter. He never provided support. I saw on Facebook just recently that he already has a new family. I want to file an action for support but I do not know where he lives. I also want to know whether he and his girlfriend got married. Please advise me on what I should do.
Jo
Dear Jo,
You and your daughter have a right to demand support from your husband because it is a part of his obligation as your spouse and as the father of your child. Such obligation is clearly stated under Article 195 of the Family Code of the Philippines, which provides that, “x x x the following are obliged to support each other to the whole extent set forth in the preceding article: (1) The spouses; x x x (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; x x x”
Accordingly, you may file an action for support against him before the Regional Trial Court, acting as a Family Court, of the place where you and your daughter reside. You must particularly indicate in your claim your financial necessities as well as those of your daughter, whether it be for your sustenance, dwelling, clothing, medical attendance, education and transportation. You must likewise be able to prove that your husband has the financial capacity to provide for such necessities because according to Article 201, id: “The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient.”
It is worth mentioning that, while a case may be filed even if the complainant has no knowledge of the exact whereabouts of the respondent, it is still vital for the former to know such detail in order for the case to prosper swiftly. This is so because the respondent will be served with the pleadings and notices relative to the case he is facing in order to give him the opportunity to answer and raise his defenses. If his whereabouts is unknown, it may cause the delay of the proceedings. Thus, it is advisable for you to determine first where your husband is presently residing.
Insofar as your desire to know whether or not your husband and his alleged girlfriend got married, you may consider verifying with the National Statistics Office (NSO) as marriages entered into here in the Philippines are commonly registered with the NSO. However, be advised that the lack of record in the NSO is not a guarantee that they have not contracted marriage because it is possible that they entered into a contract of marriage but such fact was not registered with the office of the Local Civil Registrar or the NSO.
source: Manila Times' Column by
Wednesday, April 10, 2013
As negotiable instrument, laws set limitations on checks
Dear PAO,
My daughter authorized me to claim her last salary from the company she used to work with. The company issued a check under my daughter’s name. When I tried to encash it, the bank refused even if I have already presented to them the authorization from my daughter as well as a valid ID. I requested from the company to issue a check in my favor, but until now they have not acted upon my request. What is my recourse? My daughter is currently in UAE.
EA23
Dear EA23,
Private companies more often than not require the personal appearance of the employee who desires to claim his or her last salary. In some instances, companies allow an authorized representative of the employee concerned to collect such salary, subject to certain restrictions which is for the protection of both the employee concerned as well as the company.
In the situation that you have presented before us, it is only expected that the check was issued under your daughter’s name considering that she is the former employee of the company and that the same was issued to answer for her last salary. You cannot impose on the company to issue you another check under your name because you are not the employee who is entitled thereto. Moreover, your authority is limited because you were merely authorized to claim your daughter’s last salary. Thus, you may not exceed such limitation and the company has the right to validly refuse your request.
It is likewise understandable that the bank with which you presented the said check refused to allow you to encash the same because it was issued particularly under your daughter’s name. Only your daughter is entitled to encash the said check. While a check is considered as a negotiable instrument and works as a substitute for money, there are limitations set under our laws. While a negotiable instrument, such as a check, may be negotiated in favor of another person, such may only be done by delivery, if the same is made payable to bearer, or by indorsement and delivery, if it is payable to the order of a specified person (Section 30, Negotiable Instruments Law). Considering that the check was issued by the company under the name of your daughter, the same may only be validly negotiated if your daughter indorses the same in your favor.
Since your daughter is presently in the United Arab Emirates (UAE), you may opt to send her the check so that she can indorse the same to you. Be advised that the indorsement must be written in the check itself or upon a paper attached thereto. But her signature, without additional words, may be considered as a sufficient indorsement (Section 31, id). On the other hand, you may consider depositing the check in the bank account under your daughter’s name. This way, your daughter may be able to receive the cash value thereof after the same has been cleared by the issuing bank as well as her bank of account. Furthermore, depositing the check in your daughter’s account will lessen the risk of having a stale check.
source: Manila Times' Column by
My daughter authorized me to claim her last salary from the company she used to work with. The company issued a check under my daughter’s name. When I tried to encash it, the bank refused even if I have already presented to them the authorization from my daughter as well as a valid ID. I requested from the company to issue a check in my favor, but until now they have not acted upon my request. What is my recourse? My daughter is currently in UAE.
EA23
Dear EA23,
Private companies more often than not require the personal appearance of the employee who desires to claim his or her last salary. In some instances, companies allow an authorized representative of the employee concerned to collect such salary, subject to certain restrictions which is for the protection of both the employee concerned as well as the company.
In the situation that you have presented before us, it is only expected that the check was issued under your daughter’s name considering that she is the former employee of the company and that the same was issued to answer for her last salary. You cannot impose on the company to issue you another check under your name because you are not the employee who is entitled thereto. Moreover, your authority is limited because you were merely authorized to claim your daughter’s last salary. Thus, you may not exceed such limitation and the company has the right to validly refuse your request.
It is likewise understandable that the bank with which you presented the said check refused to allow you to encash the same because it was issued particularly under your daughter’s name. Only your daughter is entitled to encash the said check. While a check is considered as a negotiable instrument and works as a substitute for money, there are limitations set under our laws. While a negotiable instrument, such as a check, may be negotiated in favor of another person, such may only be done by delivery, if the same is made payable to bearer, or by indorsement and delivery, if it is payable to the order of a specified person (Section 30, Negotiable Instruments Law). Considering that the check was issued by the company under the name of your daughter, the same may only be validly negotiated if your daughter indorses the same in your favor.
Since your daughter is presently in the United Arab Emirates (UAE), you may opt to send her the check so that she can indorse the same to you. Be advised that the indorsement must be written in the check itself or upon a paper attached thereto. But her signature, without additional words, may be considered as a sufficient indorsement (Section 31, id). On the other hand, you may consider depositing the check in the bank account under your daughter’s name. This way, your daughter may be able to receive the cash value thereof after the same has been cleared by the issuing bank as well as her bank of account. Furthermore, depositing the check in your daughter’s account will lessen the risk of having a stale check.
source: Manila Times' Column by
Sunday, April 7, 2013
Wednesday, March 27, 2013
Labor dep’t reiterates rules on holiday pay
THE DEPARTMENT of Labor and Employment
yesterday reminded private sector employers on pay rules to be observed
for employees who will work on Maundy Thursday, Good Friday, and Black
Saturday.
“President Benigno S. C. Aquino III had earlier issued Proclamation No. 459, Series of 2012, on 16 August 2012 affirming Maundy Thursday and Good Friday on 28 and 29 March, respectively, as regular holidays, and Black Saturday on 30 March... as a special non-working day throughout the country,” Labor and Employment Secretary Rosalinda D. Baldoz said in a statement. “I reiterate to our private sector employers to observe the pay rules and other core labor and occupational safety and health standards during these holidays in the interest of workers’ welfare and protection.”
She cited Labor Advisory No. 06, Series of 2012, that provided guidelines for pay on regular holidays, special non-working days and special holidays for 2013 as guide for private sector employers.
For the regular holidays on March 28 (Maundy Thursday) and 29 (Good Friday):
• If the employee does not work, he should be paid 100% of his salary for that day;
• If the employee works, he should be paid 200% of his regular salary for the first eight hours;
• If the employee works beyond eight hours, he should be paid an additional 30% of his hourly rate on that day;
• If the employee works during a regular holiday that also falls on his rest day, he should be paid an additional 30% of his daily rate on that day (which is x 200%).
• If the employee works beyond eight hours during a regular holiday that also falls on his rest day, he should be paid an additional 30% of his hourly rate on that day.
For the special non-working day on March 30 (Black Saturday):
• If the employee does not work, the “no work, no pay” principle will apply, unless there is a company policy, practice, or collective bargaining agreement granting payment on a special day;
• If the employee works, he should be paid an additional 30% of his daily rate on the first eight hours of work;
• If the employee works beyond eight hours, he should be paid an additional 30% of his hourly rate on that day;
• If the employee works during a special day that also falls on his rest day, he should be paid an additional 50% of his daily rate on the first eight hours of work;
• If the employee works beyond eight hours during a special day that also falls on his rest day, he should be paid an additional 30% of his hourly rate on that day.
source: Businessworld
“President Benigno S. C. Aquino III had earlier issued Proclamation No. 459, Series of 2012, on 16 August 2012 affirming Maundy Thursday and Good Friday on 28 and 29 March, respectively, as regular holidays, and Black Saturday on 30 March... as a special non-working day throughout the country,” Labor and Employment Secretary Rosalinda D. Baldoz said in a statement. “I reiterate to our private sector employers to observe the pay rules and other core labor and occupational safety and health standards during these holidays in the interest of workers’ welfare and protection.”
She cited Labor Advisory No. 06, Series of 2012, that provided guidelines for pay on regular holidays, special non-working days and special holidays for 2013 as guide for private sector employers.
For the regular holidays on March 28 (Maundy Thursday) and 29 (Good Friday):
• If the employee does not work, he should be paid 100% of his salary for that day;
• If the employee works, he should be paid 200% of his regular salary for the first eight hours;
• If the employee works beyond eight hours, he should be paid an additional 30% of his hourly rate on that day;
• If the employee works during a regular holiday that also falls on his rest day, he should be paid an additional 30% of his daily rate on that day (which is x 200%).
• If the employee works beyond eight hours during a regular holiday that also falls on his rest day, he should be paid an additional 30% of his hourly rate on that day.
For the special non-working day on March 30 (Black Saturday):
• If the employee does not work, the “no work, no pay” principle will apply, unless there is a company policy, practice, or collective bargaining agreement granting payment on a special day;
• If the employee works, he should be paid an additional 30% of his daily rate on the first eight hours of work;
• If the employee works beyond eight hours, he should be paid an additional 30% of his hourly rate on that day;
• If the employee works during a special day that also falls on his rest day, he should be paid an additional 50% of his daily rate on the first eight hours of work;
• If the employee works beyond eight hours during a special day that also falls on his rest day, he should be paid an additional 30% of his hourly rate on that day.
source: Businessworld
Special leave benefit for women employees
THE NUMBER of women in the Philippine work
force has considerably risen through the years. In recognition of the
vital role that women employees play in the country’s labor landscape,
several laws have been passed to protect their rights, and address their
unique needs.
One of the most recent benefits granted to women employees is the Special Leave Benefit (SLB) found in Section 18 of RA 9710, more popularly known as the Magna Carta of Women, which was signed into law on Aug. 14, 2009. SLB is granted to women employees in recognition of the fact that those who underwent surgery due to gynecological disorders require a longer period of recovery.
Gynecological disorders refer to those that would require surgical procedure, such as, but not limited to, dilation and curettage and those involving female reproductive organs. It shall also include hysterectomy, ovariectomy, and mastectomy.
In order to carry out the provision of the Magna Carta of Women on SLB, the DOLE issued D.O. No. 112-11 on March 11, 2011, which provides for the guidelines governing its implementation in the private sector. Subsequently, on May 22, 2012, the DOLE issued D.O. No. 112-A, which amended the previous guidelines.
D.O. No. 112-11, as amended by D.O. No. 112-A, defined SLB as a female employee’s entitlement of two months with full pay from her employer based on her gross monthly compensation following surgery caused by gynecological disorders, provided that she has rendered continuous aggregate employment service of at least six months for the last 12 months.
Based on the foregoing definition, it is evident that the payment of the SLB is the sole obligation of the employer, without any contribution from its employees. Thus, although it may be seen as advantageous to women employees; on the other side of the coin, it may also be considered by employers as a burden.
While it may seem from the definition that every instance of special leave is equivalent to two months with full pay, D.O. No. 112-A clarified that the two months special leave is the maximum period of leave with pay that a woman employee may avail under RA 9710.
D.O. No. 112-A elucidated that a woman employee can avail of SLB for every instance of surgery due to gynecological disorders provided that the total maximum period is two months per year.
The period of leave with pay which will be allowed to a woman employee shall depend on the required period of recuperation as certified by a competent physician.
During the period of leave, the woman employee shall not report for work but she will still receive her salary covering said period and it is upon the discretion of the employer whether to allow the employee availing of the SLB to receive her salary, before or during the surgery.
The basis of the computation of SLB is the woman employee’s gross monthly compensation, which refers to the monthly basic pay plus mandatory allowances fixed by the regional wage boards. The mandatory allowances refer to the cost of living allowance (COLA) found in wage orders issued by respective Regional Tripartite Wages and Productivity Boards (RTWPB) and does not include allowances granted by the employer by virtue of company policy or practice.
A common issue in the implementation of SLB is whether or not it can be simultaneously availed by a woman employee together with the sickness benefit under the SSS. Based on the guidelines, SLB is different from SSS sickness benefit. It must be emphasized that SLB is granted by the employer to a woman employee who has undergone surgery due to gynecological disorder. On the other hand, the sickness benefit is administered and given by the SSS in accordance with the SSS law and in compliance with the requirements provided therein.
It must also be noted that under the SSS law, the member-employees give contributions to be entitled to the benefits therein, including sickness benefit; whereas SLB is the sole obligation of the employer, sans any contribution from the employees.
SLB cannot be taken from existing statutory leaves, such as the five-day service incentive leave, 10-day leave for victims of VAWC and seven-day parental leave for solo parents, as it is given over, and on top of, other leave entitlements under existing laws. If SLB has already been exhausted, company leave and other mandated leave benefits may be availed of by the woman employee.
However, while SLB is in addition to other existing statutory leave entitlements, D.O. No. 112-A expressly provides that when the woman employee had undergone surgery due to gynecological disorder during her maternity leave, she is entitled only to the difference between SLB and maternity leave benefits.
Another concern in the implementation of SLB is the existence of “hospitalization benefits” granted by employers to their employees. Some companies have “hospitalization benefits” in place under a company policy or practice, which are granted to their employees upon confinement, surgery or hospitalization. This poses a concern whether or not said companies still have to grant women employees SLB over and above the “hospitalization benefits” that they already give. Under the guidelines, if there are existing or similar benefits providing similar or equal benefits to what is mandated by law, then the same shall already be considered as compliance, unless the company policy, practice or CBA provides otherwise.
Nonetheless, in determining whether the existing benefits can be deemed as compliance, it is necessary to bear in mind that SLB has a unique and distinctive character of being applicable only to women employees who underwent surgeries involving gynecological disorders. Hence, benefits granted to all employees of the company, who went through any type of surgery, may not be considered as compliance if the guidelines will be applied to the letter.
While there are issues, which still have to be addressed in its implementation, the grant of SLB is, indeed, another milestone for women employees. And its true essence will be realized upon the employer’s faithful compliance with the law and implementing guidelines.
(Natasha C. Daza is an associate of Angara Abello Concepcion Regala & Cruz Law Offices [ACCRALAW], Cebu Branch. She can be contacted at accralawcebu@accralaw.com)
source: Businessworld
One of the most recent benefits granted to women employees is the Special Leave Benefit (SLB) found in Section 18 of RA 9710, more popularly known as the Magna Carta of Women, which was signed into law on Aug. 14, 2009. SLB is granted to women employees in recognition of the fact that those who underwent surgery due to gynecological disorders require a longer period of recovery.
Gynecological disorders refer to those that would require surgical procedure, such as, but not limited to, dilation and curettage and those involving female reproductive organs. It shall also include hysterectomy, ovariectomy, and mastectomy.
In order to carry out the provision of the Magna Carta of Women on SLB, the DOLE issued D.O. No. 112-11 on March 11, 2011, which provides for the guidelines governing its implementation in the private sector. Subsequently, on May 22, 2012, the DOLE issued D.O. No. 112-A, which amended the previous guidelines.
D.O. No. 112-11, as amended by D.O. No. 112-A, defined SLB as a female employee’s entitlement of two months with full pay from her employer based on her gross monthly compensation following surgery caused by gynecological disorders, provided that she has rendered continuous aggregate employment service of at least six months for the last 12 months.
Based on the foregoing definition, it is evident that the payment of the SLB is the sole obligation of the employer, without any contribution from its employees. Thus, although it may be seen as advantageous to women employees; on the other side of the coin, it may also be considered by employers as a burden.
While it may seem from the definition that every instance of special leave is equivalent to two months with full pay, D.O. No. 112-A clarified that the two months special leave is the maximum period of leave with pay that a woman employee may avail under RA 9710.
D.O. No. 112-A elucidated that a woman employee can avail of SLB for every instance of surgery due to gynecological disorders provided that the total maximum period is two months per year.
The period of leave with pay which will be allowed to a woman employee shall depend on the required period of recuperation as certified by a competent physician.
During the period of leave, the woman employee shall not report for work but she will still receive her salary covering said period and it is upon the discretion of the employer whether to allow the employee availing of the SLB to receive her salary, before or during the surgery.
The basis of the computation of SLB is the woman employee’s gross monthly compensation, which refers to the monthly basic pay plus mandatory allowances fixed by the regional wage boards. The mandatory allowances refer to the cost of living allowance (COLA) found in wage orders issued by respective Regional Tripartite Wages and Productivity Boards (RTWPB) and does not include allowances granted by the employer by virtue of company policy or practice.
A common issue in the implementation of SLB is whether or not it can be simultaneously availed by a woman employee together with the sickness benefit under the SSS. Based on the guidelines, SLB is different from SSS sickness benefit. It must be emphasized that SLB is granted by the employer to a woman employee who has undergone surgery due to gynecological disorder. On the other hand, the sickness benefit is administered and given by the SSS in accordance with the SSS law and in compliance with the requirements provided therein.
It must also be noted that under the SSS law, the member-employees give contributions to be entitled to the benefits therein, including sickness benefit; whereas SLB is the sole obligation of the employer, sans any contribution from the employees.
SLB cannot be taken from existing statutory leaves, such as the five-day service incentive leave, 10-day leave for victims of VAWC and seven-day parental leave for solo parents, as it is given over, and on top of, other leave entitlements under existing laws. If SLB has already been exhausted, company leave and other mandated leave benefits may be availed of by the woman employee.
However, while SLB is in addition to other existing statutory leave entitlements, D.O. No. 112-A expressly provides that when the woman employee had undergone surgery due to gynecological disorder during her maternity leave, she is entitled only to the difference between SLB and maternity leave benefits.
Another concern in the implementation of SLB is the existence of “hospitalization benefits” granted by employers to their employees. Some companies have “hospitalization benefits” in place under a company policy or practice, which are granted to their employees upon confinement, surgery or hospitalization. This poses a concern whether or not said companies still have to grant women employees SLB over and above the “hospitalization benefits” that they already give. Under the guidelines, if there are existing or similar benefits providing similar or equal benefits to what is mandated by law, then the same shall already be considered as compliance, unless the company policy, practice or CBA provides otherwise.
Nonetheless, in determining whether the existing benefits can be deemed as compliance, it is necessary to bear in mind that SLB has a unique and distinctive character of being applicable only to women employees who underwent surgeries involving gynecological disorders. Hence, benefits granted to all employees of the company, who went through any type of surgery, may not be considered as compliance if the guidelines will be applied to the letter.
While there are issues, which still have to be addressed in its implementation, the grant of SLB is, indeed, another milestone for women employees. And its true essence will be realized upon the employer’s faithful compliance with the law and implementing guidelines.
(Natasha C. Daza is an associate of Angara Abello Concepcion Regala & Cruz Law Offices [ACCRALAW], Cebu Branch. She can be contacted at accralawcebu@accralaw.com)
source: Businessworld
Wednesday, January 23, 2013
Opinion - Kasambahay Law
Malaya - The Kasambahay bill has already been passed by the Senate and the
House of Representatives and is only awaiting President Aquino’s
signature for it to take effect.
Voting 176 in favor and 0 against, the chamber unanimously approved House Bill 6144 which will also carry out the commitment made by the Philippine government in setting acceptable standards for the employment of household helpers that will include cooks, garderners, laundry person, and nursemaids.
“It’s a landmark legislation of the 15th Congress,” said Ejercito,
The bill also seeks to comply with the international standards adopted by the International Labor Organization’s (ILO) for the protection of household helpers.
The Senate passed its version of the Kasambahay bill as early as December 2010. There were actually several bills that the House consolidated into one bill that was considered by the Bicameral Conference Committee for the final version of the approved Kasambahay Law.
Thus, this is one piece of legislation with many fathers, including Reps. Emil Ong (NUP, Northern Samar); JV Ejercito (PMP, San Juan City); Juan Edgardo Angara (LDP, Aurora); Alfredo Benitez (LP, Negros Occidental); Catalina Bagasina (ALE Party-list); Bernadette Herrera Dy (Ang Bagong Henerasyon), and Kaka Bag-ao (Akbayan),
At least 100 other solons co-authored the measure that went to the BiCam.
The Kasambahay Act alleviates the plight of many household workers or kasambahays who are among the most disadvantaged in Philippine society. After all, there’s that saying that those who have less in life should have more in law.
The Kasambahay law is keenly awaited by household workers. Said Rep. JV Ejercito, the son of former President Joseph Estrada and a leading senatorial candidate in May of the United Nationalist Alliance or UNA on the passage of the bill late last year, after being passed by the Senate in late 2010:
“I commend my fellow legislators who make up the membership of the House-Senate bicameral committee for coming up with a final version of the Kasambahay Bill. Now household helps can look forward to something for Christmas.
“As everyone knows I fought for a higher minimum salary for household helps, but I must go along with the decision reached by the committee, which pegged the amount at P2,500 in Metro Manila, P2,000 in chartered cities and first-class municipalities, and P1,500 in the rest of the country.
“I have always maintained that more than the economic benefits, household helps must be assured of protection against abusive employers. I am thus glad that the bicameral committee has kept the provision that prescribes stiff penalties for the abuse and maltreatment of these most vulnerable members of the labor force.
“As I observed in various forums, the majority of household helps have very little formal education. So I note with great satisfaction that the bicameral committee has found the wisdom to keep another portion of the bill intact, one that requires employers to allow their household helpers to complete their basic education and, if they so desire, pursue technical or vocational training as well.
“I suppose the employers and their wards should be able to reach a mutually acceptable work schedule.
“Household helps are not slaves. So again I am glad that under the law—once the bill is enacted— these men and women who clean our house, do the laundry, and take care of our children are afforded at least eight hours of rest every day and a day off every week.
“I have no doubt that President Aquino will soon sign this bill because of his compassionate character. I am sure he realizes the importance of the Kasambahay measure to lowly household helpers, some of whom are being maltreated by abusive employers.”
Well, the Kasambahay law may no longer be a Christmas gift as JV had hoped it would be, but it can still be a pre-Valentine Day’s gift by the President, the House of Representatives and the Senate to kasambahays.
Under the measure which JV pushed hard as vice chairman of the House Labor Committee, the minimum salary of a household helper is pegged at P2,500 in Metro Manila, P2,000 in chartered cities and first-class municipalities, and P1,500 in the rest of the country.
Apart from monetary compensation, which includes a 13th month pay, the measure also mandates employers to enroll their househelpers in Social Security System, Philhealth, and Pag-ibig Fund and to pay part of their monthly contribution.
Also, household helpers would be given at least eight hours rest every day and a day off one day a week.
When she died, we buried her at Loyola Memorial Park in Marikina. When people inquired as to who was being buried by all of these mourners all dressed up in their finest, they seemed shocked when we told them who was the object of our tears.
But, for her lifetime of service to us all, what surprised us was why others would find our love for our “Inay” so strange.
Voting 176 in favor and 0 against, the chamber unanimously approved House Bill 6144 which will also carry out the commitment made by the Philippine government in setting acceptable standards for the employment of household helpers that will include cooks, garderners, laundry person, and nursemaids.
“It’s a landmark legislation of the 15th Congress,” said Ejercito,
The bill also seeks to comply with the international standards adopted by the International Labor Organization’s (ILO) for the protection of household helpers.
The Senate passed its version of the Kasambahay bill as early as December 2010. There were actually several bills that the House consolidated into one bill that was considered by the Bicameral Conference Committee for the final version of the approved Kasambahay Law.
Thus, this is one piece of legislation with many fathers, including Reps. Emil Ong (NUP, Northern Samar); JV Ejercito (PMP, San Juan City); Juan Edgardo Angara (LDP, Aurora); Alfredo Benitez (LP, Negros Occidental); Catalina Bagasina (ALE Party-list); Bernadette Herrera Dy (Ang Bagong Henerasyon), and Kaka Bag-ao (Akbayan),
At least 100 other solons co-authored the measure that went to the BiCam.
The Kasambahay Act alleviates the plight of many household workers or kasambahays who are among the most disadvantaged in Philippine society. After all, there’s that saying that those who have less in life should have more in law.
The Kasambahay law is keenly awaited by household workers. Said Rep. JV Ejercito, the son of former President Joseph Estrada and a leading senatorial candidate in May of the United Nationalist Alliance or UNA on the passage of the bill late last year, after being passed by the Senate in late 2010:
“I commend my fellow legislators who make up the membership of the House-Senate bicameral committee for coming up with a final version of the Kasambahay Bill. Now household helps can look forward to something for Christmas.
“As everyone knows I fought for a higher minimum salary for household helps, but I must go along with the decision reached by the committee, which pegged the amount at P2,500 in Metro Manila, P2,000 in chartered cities and first-class municipalities, and P1,500 in the rest of the country.
“I have always maintained that more than the economic benefits, household helps must be assured of protection against abusive employers. I am thus glad that the bicameral committee has kept the provision that prescribes stiff penalties for the abuse and maltreatment of these most vulnerable members of the labor force.
“As I observed in various forums, the majority of household helps have very little formal education. So I note with great satisfaction that the bicameral committee has found the wisdom to keep another portion of the bill intact, one that requires employers to allow their household helpers to complete their basic education and, if they so desire, pursue technical or vocational training as well.
“I suppose the employers and their wards should be able to reach a mutually acceptable work schedule.
“Household helps are not slaves. So again I am glad that under the law—once the bill is enacted— these men and women who clean our house, do the laundry, and take care of our children are afforded at least eight hours of rest every day and a day off every week.
“I have no doubt that President Aquino will soon sign this bill because of his compassionate character. I am sure he realizes the importance of the Kasambahay measure to lowly household helpers, some of whom are being maltreated by abusive employers.”
Well, the Kasambahay law may no longer be a Christmas gift as JV had hoped it would be, but it can still be a pre-Valentine Day’s gift by the President, the House of Representatives and the Senate to kasambahays.
Under the measure which JV pushed hard as vice chairman of the House Labor Committee, the minimum salary of a household helper is pegged at P2,500 in Metro Manila, P2,000 in chartered cities and first-class municipalities, and P1,500 in the rest of the country.
Apart from monetary compensation, which includes a 13th month pay, the measure also mandates employers to enroll their househelpers in Social Security System, Philhealth, and Pag-ibig Fund and to pay part of their monthly contribution.
Also, household helpers would be given at least eight hours rest every day and a day off one day a week.
***
We had a Kasambahay who saw all of us ten children come into this
world. Her name was Fausta Baje but all of us called her “Inay.” She
would scold us, censure us and would order us around; but, through it
all, we knew that she loved us all, maybe not quite equally (since she
had her favorites) but at least more than she cared for herself.When she died, we buried her at Loyola Memorial Park in Marikina. When people inquired as to who was being buried by all of these mourners all dressed up in their finest, they seemed shocked when we told them who was the object of our tears.
But, for her lifetime of service to us all, what surprised us was why others would find our love for our “Inay” so strange.
Gurong nagpakasal sa estudyante, sinisante
KGG. na Atty. Acosta,
Ako po ay isang dating guro sa high school sa isang pribadong eskwelahan. Niligawan po ako ng isang estudyanteng 18 taong gulang at sa kalaunan ay nahulog ang aking loob sa kanya.
Hindi po mahalaga na 10 taon ang pagitan ng aming mga edad dahil nagmamahalan po kami. Nagpakasal po kami noong isang taon.
Noong nalaman po ng management ng eskwelahan ang aming pagpapakasal, tinanggal po ako bilang isang guro dahil daw po sa immoral conduct kaya nawalan na raw sila ng trust and confidence sa akin bilang isang guro.
Wala naman po kaming masamang ginagawa ng aking asawa kahit noong kami ay magkasintahan pa lamang. Nagmamahalan po kami ng wagas at totoo. Ano pong legal na hakbang ang maipapayo ninyo sa akin?
Lubos na gumagalang,
Lavinia
Dear Lavinia,
Ang Labor Code of the Philippines ang batas na angkop sa inyong sitwasyon. Ayon sa Artikulo 282 ng nasabing batas:
“An employer may terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and
(e) Other causes analogous to the foregoing.”
Bagama’t isa sa mga rason ang breach of trust upang ma-terminate ang isang empleyado, maaari pa rin kayong maghain ng isang illegal dismissal case laban sa inyong dating employer.
Ang inyong dating employer ang siyang may obligasyon upang patunayan na ang mga akto bago pa naganap ang inyong pagpapakasal ay maituturing na immoral conduct at isang dahilan upang sila ay mawalan ng trust and confidence sa inyo.
Nagkaroon ng diskusyon ang Korte Suprema kung ano ang ibig sabihin ng immoral conduct sa kasong Rene Puse v. Ligaya Puse (G.R. No. 183678, March 15, 2010) na sinipi mula sa kasong Santos, Jr. v. NLRC (G.R. No. 115795, March 6, 1998):
“On the outset, it must be stressed that to constitute immorality, the circumstances of each particular case must be holistically considered and evaluated in light of the prevailing norms of conduct and applicable laws. American jurisprudence has defined immorality as a course of conduct which offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and to elevate, x x x Thus, in petitioner’s case, the gravity and seriousness of the charges against him stem from his being a married man and at the same time a teacher. Accordingly, teachers must abide by a standard of personal conduct which not only proscribes the commission of immoral acts, but also prohibits behaviour creating a suspicion of immorality because of the harmful impression it might have on the students. Likewise, they must observe a high standard of integrity and honesty.
From the foregoing, it seems obvious that when a teacher engages in extra-marital relationship, especially when the parties are both married, such behaviour amounts to immorality, justifying his termination from employment.”
Sa inyong kaso hindi maituturing na immoral conduct ang inyong pagpapakasal, sapagkat inilahad na ng ating Korte Suprema sa kasong Evelyn Chua-Qua v. Hon. Clave (G.R. No. 49549, 30 August 1990):
“After a painstaking perusal of the records, we are of the considered view that the determination of the legality of the dismissal hinges on the issue of whether or not there is substantial evidence to prove that the antecedent facts which culminated in the marriage between petitioner and her student constitute immorality and/or grave misconduct. To constitute immorality, the circumstances of each particular case must be holistically considered and evaluated in the light of prevailing norms of conduct and the applicable law. Contrary to what petitioner had insisted on from the very start, what is before us is a factual question, the resolution of which is better left to the trier of facts.
With the finding that there is no substantial evidence of the imputed immoral acts, it follows that the alleged violation of the Code of Ethics governing school teachers would have no basis. Private respondent utterly failed to show that petitioner took advantage of her position to court her student. If the two eventually fell in love, despite the disparity in their ages and academic levels, this only lends substance to the truism that the heart has reasons of its own which reason does not know. But, definitely, yielding to this gentle and universal emotion is not to be so casually equated with immorality. The deviation of the circumstances of their marriage from the usual societal pattern cannot be considered as a defiance of contemporary social mores.” (Binigyan ng diin).
Samakatuwid, ang legalidad ng inyong pagkatanggal ay nakabase sa ebidensya na maaaring isumite ng inyong dating employer at sa pagpapahalaga ng hukuman o korte na didinig sa inyong kaso.
Nawa ay nasagot namin ang inyong mga katanungan.
Maraming salamat po sa inyong patuloy na pagtitiwala.
Ang inyo pong lingkod-bayan,
PERSIDA V. RUEDA-ACOSTA
Punong Manananggol Pambayan
Paunawa: Manood ng “Public Atorni: Asunto o Areglo” mula Lunes hanggang Biyernes, 7 ng gabi, sa Aksyon TV. Makinig sa “Abogado ng Bayan” sa Radyo ng Bayan, DZRB, 738 khz AM band, 6:30 a.m. mula Lunes hanggang Biyernes.
Isangguni ang iba pa ninyong usaping legal sa aming opisina sa address na nakasaad sa pitak na ito o kaya ipadala ang inyong katanungan sa aming e-mail address: pao_executive@yahoo.com o tumawag sa PAO hotline: 929-9436 local 106 o 107 during office hours; local 159 beyond office hours.
Ang mga serbisyong legal ng PAO gaya ng “legal advice,” court representation, pagsasagawa ng dokumento, notaryo at iba pa ay libre at walang bayad mula sa kliyente ng PAO sang-ayon sa R.A. 9406 (PAO Law). Sang-ayon din sa nasabing batas, ang katunggali o kalaban sa kaso na matatalo ang magbabayad ng attorney’s fee sa PAO para ideposito sa National Treasury.
Maaaring isumbong kay Chief Acosta ang sinumang public attorney o empleyado ng PAO na manghihingi o tatanggap ng salapi mula sa kliyente ng PAO sa address na ito: 5th Floor, DOJ Agencies Building, NIA Road corner East Avenue, Diliman, Quezon City, 1104.
Ako po ay isang dating guro sa high school sa isang pribadong eskwelahan. Niligawan po ako ng isang estudyanteng 18 taong gulang at sa kalaunan ay nahulog ang aking loob sa kanya.
Hindi po mahalaga na 10 taon ang pagitan ng aming mga edad dahil nagmamahalan po kami. Nagpakasal po kami noong isang taon.
Noong nalaman po ng management ng eskwelahan ang aming pagpapakasal, tinanggal po ako bilang isang guro dahil daw po sa immoral conduct kaya nawalan na raw sila ng trust and confidence sa akin bilang isang guro.
Wala naman po kaming masamang ginagawa ng aking asawa kahit noong kami ay magkasintahan pa lamang. Nagmamahalan po kami ng wagas at totoo. Ano pong legal na hakbang ang maipapayo ninyo sa akin?
Lubos na gumagalang,
Lavinia
Dear Lavinia,
Ang Labor Code of the Philippines ang batas na angkop sa inyong sitwasyon. Ayon sa Artikulo 282 ng nasabing batas:
“An employer may terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and
(e) Other causes analogous to the foregoing.”
Bagama’t isa sa mga rason ang breach of trust upang ma-terminate ang isang empleyado, maaari pa rin kayong maghain ng isang illegal dismissal case laban sa inyong dating employer.
Ang inyong dating employer ang siyang may obligasyon upang patunayan na ang mga akto bago pa naganap ang inyong pagpapakasal ay maituturing na immoral conduct at isang dahilan upang sila ay mawalan ng trust and confidence sa inyo.
Nagkaroon ng diskusyon ang Korte Suprema kung ano ang ibig sabihin ng immoral conduct sa kasong Rene Puse v. Ligaya Puse (G.R. No. 183678, March 15, 2010) na sinipi mula sa kasong Santos, Jr. v. NLRC (G.R. No. 115795, March 6, 1998):
“On the outset, it must be stressed that to constitute immorality, the circumstances of each particular case must be holistically considered and evaluated in light of the prevailing norms of conduct and applicable laws. American jurisprudence has defined immorality as a course of conduct which offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and to elevate, x x x Thus, in petitioner’s case, the gravity and seriousness of the charges against him stem from his being a married man and at the same time a teacher. Accordingly, teachers must abide by a standard of personal conduct which not only proscribes the commission of immoral acts, but also prohibits behaviour creating a suspicion of immorality because of the harmful impression it might have on the students. Likewise, they must observe a high standard of integrity and honesty.
From the foregoing, it seems obvious that when a teacher engages in extra-marital relationship, especially when the parties are both married, such behaviour amounts to immorality, justifying his termination from employment.”
Sa inyong kaso hindi maituturing na immoral conduct ang inyong pagpapakasal, sapagkat inilahad na ng ating Korte Suprema sa kasong Evelyn Chua-Qua v. Hon. Clave (G.R. No. 49549, 30 August 1990):
“After a painstaking perusal of the records, we are of the considered view that the determination of the legality of the dismissal hinges on the issue of whether or not there is substantial evidence to prove that the antecedent facts which culminated in the marriage between petitioner and her student constitute immorality and/or grave misconduct. To constitute immorality, the circumstances of each particular case must be holistically considered and evaluated in the light of prevailing norms of conduct and the applicable law. Contrary to what petitioner had insisted on from the very start, what is before us is a factual question, the resolution of which is better left to the trier of facts.
With the finding that there is no substantial evidence of the imputed immoral acts, it follows that the alleged violation of the Code of Ethics governing school teachers would have no basis. Private respondent utterly failed to show that petitioner took advantage of her position to court her student. If the two eventually fell in love, despite the disparity in their ages and academic levels, this only lends substance to the truism that the heart has reasons of its own which reason does not know. But, definitely, yielding to this gentle and universal emotion is not to be so casually equated with immorality. The deviation of the circumstances of their marriage from the usual societal pattern cannot be considered as a defiance of contemporary social mores.” (Binigyan ng diin).
Samakatuwid, ang legalidad ng inyong pagkatanggal ay nakabase sa ebidensya na maaaring isumite ng inyong dating employer at sa pagpapahalaga ng hukuman o korte na didinig sa inyong kaso.
Nawa ay nasagot namin ang inyong mga katanungan.
Maraming salamat po sa inyong patuloy na pagtitiwala.
Ang inyo pong lingkod-bayan,
PERSIDA V. RUEDA-ACOSTA
Punong Manananggol Pambayan
Paunawa: Manood ng “Public Atorni: Asunto o Areglo” mula Lunes hanggang Biyernes, 7 ng gabi, sa Aksyon TV. Makinig sa “Abogado ng Bayan” sa Radyo ng Bayan, DZRB, 738 khz AM band, 6:30 a.m. mula Lunes hanggang Biyernes.
Isangguni ang iba pa ninyong usaping legal sa aming opisina sa address na nakasaad sa pitak na ito o kaya ipadala ang inyong katanungan sa aming e-mail address: pao_executive@yahoo.com o tumawag sa PAO hotline: 929-9436 local 106 o 107 during office hours; local 159 beyond office hours.
Ang mga serbisyong legal ng PAO gaya ng “legal advice,” court representation, pagsasagawa ng dokumento, notaryo at iba pa ay libre at walang bayad mula sa kliyente ng PAO sang-ayon sa R.A. 9406 (PAO Law). Sang-ayon din sa nasabing batas, ang katunggali o kalaban sa kaso na matatalo ang magbabayad ng attorney’s fee sa PAO para ideposito sa National Treasury.
Maaaring isumbong kay Chief Acosta ang sinumang public attorney o empleyado ng PAO na manghihingi o tatanggap ng salapi mula sa kliyente ng PAO sa address na ito: 5th Floor, DOJ Agencies Building, NIA Road corner East Avenue, Diliman, Quezon City, 1104.
Sunday, January 20, 2013
Liquidation: Who has preference - Creditor or Worker forUnpaid Wages?
Liquidation; preference for unpaid wages.
As to petitioner’s argument on the right of first preference as regards
unpaid wages, the Court has elucidated in the case of Development Bank
of the Philippines v. NLRC that a distinction should be made between a
preference of credit and a lien. A preference applies only to claims
which do not attach to specific properties. A lien creates a charge on a
particular property. The right of first preference as regards unpaid
wages recognized by Article 110 of the Labor Code, does not constitute a
lien on the property of the insolvent debtor in favor of workers. It is
but a preference of credit in their favor, a preference in application.
It is a method adopted to determine and specify the order in which
credits should be paid in the final distribution of the proceeds of the
insolvent’s assets. It is a right to a first preference in the discharge
of the funds of the judgment debtor. Consequently, the right of first
preference for unpaid wages may not be invoked in this case to nullify
the foreclosure sales conducted pursuant to PNB ‘s right as a secured
creditor to enforce its lien on specific properties of its debtor,
ARCAM. Manuel D. Yngson, Jr., (in his capacity as the Liquidator of ARCAM & Co., Inc.) vs. Philippine National Bank, G.R. No. 171132, August 15, 2012.
http://lexoterica.wordpress.com/2012/09/03/august-2012-philippine-supreme-court-decisions-on-commercial-law/
http://lexoterica.wordpress.com/2012/09/03/august-2012-philippine-supreme-court-decisions-on-commercial-law/
Thursday, January 17, 2013
Employers and the Data Privacy Act
Businessworld - REPUBLIC Act No. 10173 (An Act Protecting
Individual Personal Information in Information and Communications
Systems in the Government and the Private Sector, Creating for this
Purpose a National Privacy Commission, and for Other Purposes), or the
Data Privacy Act, was enacted into law last 15 August 2012.
It seeks to strike a balance between the protection of the fundamental human right to privacy of communication and the free flow of information to promote innovation and growth. The law, principally based on the European Union Directive 95/46 also known as the Data Protection Directive, brings the Philippines closer to international standards of privacy protection, and, by virtue thereof, aims to attract foreign investors in the booming information technology and business process outsourcing industry.
The law imposes a set of obligations upon any person or entity (referred to as the “personal information controller”) that controls the collection, holding, recording, storing, updating, disposal, processing or use of the personal information of an individual (referred to as the “data subject”). These obligations include, among others, informing data subjects that their personal information is being processed, providing them with reasonable access to personal information under the control of the personal information controller, immediately correcting personal information found to be inaccurate or erroneous, and indemnifying data subjects for any damages.
The legal definition of “personal information controller” under the law is broad enough to cover employers who, in the normal course of their human resources operations, must necessarily collect and process the personal information of their employees, and even of job applicants.
Hence, employers are required to observe the obligations set forth in the Data Privacy Act, in addition to existing labor laws.
Some of the pressing issues that employers may encounter in the implementation of the law are:
1) Employee access to company records
One of the rights afforded to employees as data subjects is reasonable access, upon demand, to the contents of their personal information under the control of their employer, the sources from and the manner by which information is obtained, and other data relating to how the employer has been processing their personal information. This obligation may be difficult and costly to implement especially for employers who do not normally maintain an organized employee information database. On the other hand, employers who maintain records in the form of 201 files may be hesitant to provide such information since this is not normally made available to employees. The 201 files may also include complaints against the subject employee, performance evaluations from their superiors, results of administrative investigations, and other confidential information not meant to be accessed by the subject employee.
2) Data privacy rights of the employee under investigation
A data subject cannot invoke his access right under the law when the personal information being processed is for the purpose of investigation in relation to any criminal, administrative or tax liabilities against him. The law is silent, however, whether employee disciplinary investigations may be classified as one of the exceptions that can fall under administrative liabilities. Nonetheless, in the absence of any express exception to the right, the same shall prevail.
3) Extraterritorial application of the law
The law provides an extraterritorial application in instances wherein the personal information involved belongs to a Philippine citizen or resident. This means that the data subject may enforce his rights even against entities based overseas. This may present challenges to some industries, such as the IT-BPO industry, wherein overseas companies require local BPO companies to provide personal information on their employees. In such cases, these overseas companies may technically be classified by the law as personal information controllers and are hence bound by the obligations set forth under the law.
4) Limitations in collecting information from job applicants
Sensitive personal information is a species of personal information clearly defined and enumerated under the law. It includes personal information relating to the race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations, health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person.
It also includes personal information issued by government agencies peculiar to individuals such as social security numbers.
The law imposes more stringent requirements in the collection, processing, and retention of such sensitive personal information. While it is conventional for potential employers to collect and process such sensitive personal information of the applicants, such as school records and NBI clearance, they are only permitted by the law to request and collect such information that are relevant and not excessive for the purpose of the job application. Furthermore, due to the stringent requirements for the processing of sensitive personal information, potential employers are required to first obtain the express consent of the applicant, which must be in written, electronic, or recorded form, prior to the collection and processing of the applicant’s sensitive personal information. The restrictions in obtaining sensitive personal information may present limitations in information-gathering that will allow potential employers to make an uninhibited and informed choice in the selection process of screening applicants.
5) Disposal/retention of employees’ personal information after their resignation
The law allows a data subject to demand the withdrawal, removal, or destruction of his personal information upon substantial proof that the information is no longer necessary for the purpose for which it is collected. Hence, employers may face demands from their former employees to remove their personal information from company records upon their resignation or termination from employment. This may present problems if sometime thereafter, such former employees decide to institute an action against their employer who, having earlier deleted the records of these complainants, is put at a legal disadvantage.
6) Penalties against corporations for violating the law
The law provides that when the offender is a corporation, partnership, or any juridical person, any of its rights under the law may be suspended or revoked. This penalty provision may need further clarification in the upcoming implementing rules of the law. Note that the Data Privacy Act was enacted to protect the privacy rights of the data subject, who is defined as “an individual whose personal information is processed.” As worded, the law does not extend the same rights to juridical entities. Thus, there is an issue on what particular rights of juridical entities under the law may be suspended or revoked when they have not been granted any privacy rights by the Data Privacy Act in the first place.
The foregoing are snippets of the potential issues brought about by the new law insofar as employer-employee relationship is concerned. It is important to note, however, that the implementing rules and regulations for the law have yet to be released. We should be expecting a clearer and broader picture of the law and its effects once the rules are released. In the meantime, however, employers should carefully study the law, detect potential issues in their own workplace, and pursue preliminary measures to comply with the same.
(The author is an associate of the Angara Abello Concepcion Regala & Cruz Law Offices [ACCRALAW]. He may be contacted at Tel. No. 830-8000 or email lrsze@accralaw.com).
It seeks to strike a balance between the protection of the fundamental human right to privacy of communication and the free flow of information to promote innovation and growth. The law, principally based on the European Union Directive 95/46 also known as the Data Protection Directive, brings the Philippines closer to international standards of privacy protection, and, by virtue thereof, aims to attract foreign investors in the booming information technology and business process outsourcing industry.
The law imposes a set of obligations upon any person or entity (referred to as the “personal information controller”) that controls the collection, holding, recording, storing, updating, disposal, processing or use of the personal information of an individual (referred to as the “data subject”). These obligations include, among others, informing data subjects that their personal information is being processed, providing them with reasonable access to personal information under the control of the personal information controller, immediately correcting personal information found to be inaccurate or erroneous, and indemnifying data subjects for any damages.
The legal definition of “personal information controller” under the law is broad enough to cover employers who, in the normal course of their human resources operations, must necessarily collect and process the personal information of their employees, and even of job applicants.
Hence, employers are required to observe the obligations set forth in the Data Privacy Act, in addition to existing labor laws.
Some of the pressing issues that employers may encounter in the implementation of the law are:
1) Employee access to company records
One of the rights afforded to employees as data subjects is reasonable access, upon demand, to the contents of their personal information under the control of their employer, the sources from and the manner by which information is obtained, and other data relating to how the employer has been processing their personal information. This obligation may be difficult and costly to implement especially for employers who do not normally maintain an organized employee information database. On the other hand, employers who maintain records in the form of 201 files may be hesitant to provide such information since this is not normally made available to employees. The 201 files may also include complaints against the subject employee, performance evaluations from their superiors, results of administrative investigations, and other confidential information not meant to be accessed by the subject employee.
2) Data privacy rights of the employee under investigation
A data subject cannot invoke his access right under the law when the personal information being processed is for the purpose of investigation in relation to any criminal, administrative or tax liabilities against him. The law is silent, however, whether employee disciplinary investigations may be classified as one of the exceptions that can fall under administrative liabilities. Nonetheless, in the absence of any express exception to the right, the same shall prevail.
3) Extraterritorial application of the law
The law provides an extraterritorial application in instances wherein the personal information involved belongs to a Philippine citizen or resident. This means that the data subject may enforce his rights even against entities based overseas. This may present challenges to some industries, such as the IT-BPO industry, wherein overseas companies require local BPO companies to provide personal information on their employees. In such cases, these overseas companies may technically be classified by the law as personal information controllers and are hence bound by the obligations set forth under the law.
4) Limitations in collecting information from job applicants
Sensitive personal information is a species of personal information clearly defined and enumerated under the law. It includes personal information relating to the race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations, health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person.
It also includes personal information issued by government agencies peculiar to individuals such as social security numbers.
The law imposes more stringent requirements in the collection, processing, and retention of such sensitive personal information. While it is conventional for potential employers to collect and process such sensitive personal information of the applicants, such as school records and NBI clearance, they are only permitted by the law to request and collect such information that are relevant and not excessive for the purpose of the job application. Furthermore, due to the stringent requirements for the processing of sensitive personal information, potential employers are required to first obtain the express consent of the applicant, which must be in written, electronic, or recorded form, prior to the collection and processing of the applicant’s sensitive personal information. The restrictions in obtaining sensitive personal information may present limitations in information-gathering that will allow potential employers to make an uninhibited and informed choice in the selection process of screening applicants.
5) Disposal/retention of employees’ personal information after their resignation
The law allows a data subject to demand the withdrawal, removal, or destruction of his personal information upon substantial proof that the information is no longer necessary for the purpose for which it is collected. Hence, employers may face demands from their former employees to remove their personal information from company records upon their resignation or termination from employment. This may present problems if sometime thereafter, such former employees decide to institute an action against their employer who, having earlier deleted the records of these complainants, is put at a legal disadvantage.
6) Penalties against corporations for violating the law
The law provides that when the offender is a corporation, partnership, or any juridical person, any of its rights under the law may be suspended or revoked. This penalty provision may need further clarification in the upcoming implementing rules of the law. Note that the Data Privacy Act was enacted to protect the privacy rights of the data subject, who is defined as “an individual whose personal information is processed.” As worded, the law does not extend the same rights to juridical entities. Thus, there is an issue on what particular rights of juridical entities under the law may be suspended or revoked when they have not been granted any privacy rights by the Data Privacy Act in the first place.
The foregoing are snippets of the potential issues brought about by the new law insofar as employer-employee relationship is concerned. It is important to note, however, that the implementing rules and regulations for the law have yet to be released. We should be expecting a clearer and broader picture of the law and its effects once the rules are released. In the meantime, however, employers should carefully study the law, detect potential issues in their own workplace, and pursue preliminary measures to comply with the same.
(The author is an associate of the Angara Abello Concepcion Regala & Cruz Law Offices [ACCRALAW]. He may be contacted at Tel. No. 830-8000 or email lrsze@accralaw.com).
Tuesday, January 15, 2013
Worker regularity based on nature of job, not the written employment contract
Dear PAO,
I have been working in this beverage company since 2010 under one-year contract and was renewed yearly up until this year.
It is stated in one of the provisions of the contract that I’m not entitled to any benefits and privileges that regular employees get. I’m wondering if I can get a 13th month pay under Department Order 18-A, Series of 2011. Would there be any chance that I can be a regular employee since I have been with them for almost three years. Thanks. I hope you can enlighten me on this matter.
Abub
Dear Abub,
Article 280 of the Labor Code of the Philippines is enlightening with regard to who should be considered a regular employee. The said law provides that:
“Art. 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.”
It is clear from the provisions of the cited law that if the work performed is necessary and desirable to the business of the employer then the employee will be deemed as regular regardless of the stipulations to the contrary. In other words, what determines regularity is not the written employment contract, but the nature of the job (Azucena, Everyone’s Labor Code, 2010 update, citing A.M. Oreta, August 10, 1989).
Since your employment is based on a contract limited to a period of one year, you may initially be considered as a project, or contract worker. Generally, contract workers are not considered regular employees, since their services are needed only when there are projects to be undertaken (Cartagenas v. Romago Electric Co., G.R. No. 82973, September 15, 1989). Nonetheless, should the employment of the project or contract employees be extended after the end of the supposed project, the said employees can now be considered as regular employees (Azucena, Everyone’s Labor Code).
Furthermore, a project employee in a private company or entity may acquire the status of a regular employee when:
a. There is a continuous rehiring of project employees even after the end of the project;
b. The tasks performed by the alleged project employee are vital, necessary and indispensable to the usual business or trade of the employer (Ibid).
Thus, considering that you have been re-hired several times already, and if determined that you perform necessary and indispensable tasks to your employer, your status may become that of a regular employee, and thus, entitled to all the rights and privileges as provided by law.
With regard to Department Order (DO) 18-A, Series of 2011 that you mentioned, note that this department order applies to employees engaged in a contracting and subcontracting arrangement. Sec. 8 of DO 18-A, Series of 2011 specifically provides for the rights and privileges that such employees are entitled to, which includes:
“Sec. 8. Rights of contractor’s employee. All contractor’s employees, whether deployed or assigned as reliever, seasonal, week-ender, temporary, or promo jobbers, shall be entitled to all the rights and privileges as provided for in the Labor Code, as amended, to include the following:
a. xxx
b. Labor standards such as but not limited to service incentive leave, rest days, overtime pay, holiday pay, 13th month pay and separation pay as may be provided in the Service Agreement or under the Labor Code. xxx”
Thus, should your employment be based on such arrangement, you are still entitled to a 13th month pay as clearly provided by law.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
I have been working in this beverage company since 2010 under one-year contract and was renewed yearly up until this year.
It is stated in one of the provisions of the contract that I’m not entitled to any benefits and privileges that regular employees get. I’m wondering if I can get a 13th month pay under Department Order 18-A, Series of 2011. Would there be any chance that I can be a regular employee since I have been with them for almost three years. Thanks. I hope you can enlighten me on this matter.
Abub
Dear Abub,
Article 280 of the Labor Code of the Philippines is enlightening with regard to who should be considered a regular employee. The said law provides that:
“Art. 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.”
It is clear from the provisions of the cited law that if the work performed is necessary and desirable to the business of the employer then the employee will be deemed as regular regardless of the stipulations to the contrary. In other words, what determines regularity is not the written employment contract, but the nature of the job (Azucena, Everyone’s Labor Code, 2010 update, citing A.M. Oreta, August 10, 1989).
Since your employment is based on a contract limited to a period of one year, you may initially be considered as a project, or contract worker. Generally, contract workers are not considered regular employees, since their services are needed only when there are projects to be undertaken (Cartagenas v. Romago Electric Co., G.R. No. 82973, September 15, 1989). Nonetheless, should the employment of the project or contract employees be extended after the end of the supposed project, the said employees can now be considered as regular employees (Azucena, Everyone’s Labor Code).
Furthermore, a project employee in a private company or entity may acquire the status of a regular employee when:
a. There is a continuous rehiring of project employees even after the end of the project;
b. The tasks performed by the alleged project employee are vital, necessary and indispensable to the usual business or trade of the employer (Ibid).
Thus, considering that you have been re-hired several times already, and if determined that you perform necessary and indispensable tasks to your employer, your status may become that of a regular employee, and thus, entitled to all the rights and privileges as provided by law.
With regard to Department Order (DO) 18-A, Series of 2011 that you mentioned, note that this department order applies to employees engaged in a contracting and subcontracting arrangement. Sec. 8 of DO 18-A, Series of 2011 specifically provides for the rights and privileges that such employees are entitled to, which includes:
“Sec. 8. Rights of contractor’s employee. All contractor’s employees, whether deployed or assigned as reliever, seasonal, week-ender, temporary, or promo jobbers, shall be entitled to all the rights and privileges as provided for in the Labor Code, as amended, to include the following:
a. xxx
b. Labor standards such as but not limited to service incentive leave, rest days, overtime pay, holiday pay, 13th month pay and separation pay as may be provided in the Service Agreement or under the Labor Code. xxx”
Thus, should your employment be based on such arrangement, you are still entitled to a 13th month pay as clearly provided by law.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
Monday, January 14, 2013
SSS Law: Death and funeral benefits
Deceased SSS member’s family gets death and funeral benefits
Manila Times (January 15, 2013)Dear PAO,
What benefits may the family of a deceased SSS member get?
Espy
Dear Espy,
The Social Security System (SSS) was enacted primarily with the end of promoting social justice and providing protection to its members and their beneficiaries against the hazards of disability, sickness, maternity, old age, death and other contingencies resulting in loss of income or financial burden (Section 2, Republic Act [RA] 8282). To ensure that these purposes are served, the law requires compulsory membership or coverage upon all employees not over the age of 60, as well as upon self-employed persons as may be determined by the Social Security Commission (Sec. 9 and 9-A, RA 8282).
When a member of SSS dies, his beneficiaries will be given death benefits in accordance with Sec. 13 of RA 8282, to wit:
“SECTION 13. Death Benefits. — Upon the death of a member who has paid at least 36 monthly contributions prior to the semester of death, his primary beneficiaries shall be entitled to the monthly pension: Provided, That if he has no primary beneficiaries, his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to 36 times the monthly pension. If he has not paid the required 36 monthly contributions, his primary or secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the monthly pension times the number of monthly contributions paid to the SSS, or 12 times the monthly pension, whichever is higher.”
The beneficiaries referred to in the preceding paragraph are the dependent spouse until he or she remarries, the dependent legitimate, legitimated, or legally adopted and illegitimate children of the deceased member, who shall be the primary beneficiaries of the member: Provided, That the dependent illegitimate children shall be entitled to 50 percent of the share of the legitimate, legitimated or legally adopted children: Provided, further, that in the absence of the dependent legitimate, legitimated or legally adopted children of the member, his/her dependent illegitimate children shall be entitled to 100 percent of the benefits. In the absence of the primary beneficiaries, the dependent parents shall be the secondary beneficiaries of the member. In the absence of the foregoing, any other person designated by the member as his/her secondary beneficiary shall receive the benefits due (Sec. 8[k], RA 8282). If no one qualifies as beneficiary, the death benefits shall be paid to the deceased member’s legal heirs in accordance with the law on succession (Sec. 15, ibid.).
In addition to the death benefits, funeral benefit shall also be given to help defray the cost of funeral expenses upon the death of a member, including, permanently totally disabled member or retiree (Sec. 13-B, RA 8282). This funeral grant in the amount of P20,000 shall be given to whoever pays the burial expenses of the deceased member, or pensioner ( https://www.sss.gov.ph/sss/).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
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