Salaries and wages shall only be paid in the form of money or legal tender

Dear PAO,
I was hired two months ago as a delivery boy of a construction establishment. Despite the fact that it is located three cities away from where I reside and that I was informed that my salary will only be minimum wage, I still accepted the job1 because I need to support my wife and two children. However, I was shocked when I was only given half of my salary and the other half was in the form of supplies. Do I have any course of action against my employer? I hope to hear from you soon.
Ren Ren

Dear Ren Ren,
Employees are entitled to receive the salaries and wages as agreed upon under the contract of employment, which is in consonance with existing laws and regulations. As a rule, salaries and wages shall only be paid in the form of legal tender. While payment by way of checks or money order may be allowed, payment by other means is considered unlawful. This is explicitly stated under Article 102 of Presidential Decree (P.D.) No. 442 as amended, otherwise known as the Labor Code of the Philippines, that: “No employer shall pay the wages of an employee by means of promissory notes, vouchers, coupons, tokens, tickets, chits, or any object other than legal tender, even when expressly requested by the employee. x x x Payment of wages by check or money order shall be allowed when such manner of payment is customary on the date of effectivity of this Code, or is necessary because of special circumstances as specified in appropriate regulations to be issued by the Secretary of Labor and Employment or as stipulated in a collective bargaining agreement.”

Accordingly, you can demand from your employer to pay your full salary in money or legal tender. Should they insist in paying half of your salary in the form of supplies, you may consider filing a labor complaint against them before the Department of Labor and Employment (DOLE) for violation of the afore-stated law.

Apart from that, you may consider filing a criminal complaint for other similar coercions. As provided for under Article 288 of the Revised Penal Code:

“The penalty of arresto mayor or a fine ranging from 200 to 500 pesos, or both, shall be imposed upon any person, agent or officer, of any association or corporation who shall force or compel, directly or indirectly, or shall knowingly permit any laborer or employee employed by him or by such firm or corporation to be forced or compelled, to purchase merchandise or commodities of any kind.

The same penalties shall be imposed upon any person who shall pay the wages due a laborer or employee employed by him, by means of tokens or objects other than the legal tender currency of the laborer or employee.” (Emphasis supplied)

We hope that we were able to answer your query. 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

Employer can replace mentally unfit house helper

Dear PAO,
I recently hired a house helper through a manpower service provider. They immediately assigned one to my house and it’s been only two weeks since she started but I’ve been observing that something is not right with her. Even my husband and other relatives observe some weird incidents involving the new house helper. In one instance, we heard her talking to the electric fan and praying to it. She even claims that she hears angels and elves. While I don’t care much about her religious beliefs, I’m not sure if our kasambahay is mentally fit for her tasks even though the manpower service provider assured me that they extensively interviewed her. Because of this, I’d like to know if it is legal to ask for a replacement for our house helper for being perhaps mentally unfit. I would like to know also my other rights related to this. Thank you and more power!
Athena

Dear Athena,
The answer to your query can be found in the Implementing Rules and Regulations (IRR) of Republic Act (RA) 10361, which governs the employment and even replacement of house helpers or kasambahay. According to your narration, you hired your house helper through a manpower service provider, which is technically considered as a private employment agency under the law. Considering this, the provision of the above-cited law concerning the replacement of kasambahay deployed by private employment agencies applies to your case, to wit:

“Section 4. Replacement of Kasambahay by PEAs. – Within one (1) month from the day the kasambahay reported for work, the employer shall be entitled to a qualified replacement at no additional cost if any of the following grounds occurred:

a) The kasambahay is found to be suffering from an incurable or contagious disease, or mental disease, or mental illness as certified by a competent government physician;

b )The kasambahay abandons the job without justifiable cause, voluntarily resigns, commits theft or any other analogous acts prejudicial to the employer or his/her family; or

c)The kasambahay is physically or mentally incapable of discharging the minimum requirements of the job, as specified in the employment contract.

xxx” (Section 4, Rule III, Implementing Rules and Regulations of RA 10361).

It can be seen that from the aforementioned rule that mental illness is among the grounds that can be used by an employer to legally request replacement for a house helper assigned by a private employment agency. It is important to note, however, that mere allegation of mental illness is not sufficient in availing of the right to replace a kasambahay. The law expressly requires for a certification by a government doctor stating that the kasambahay that is intended to be replaced is mentally unfit to fulfill her tasks as a house helper.

Thus, if you insist that your kasambahay is mentally unfit and you intend to use such condition as a ground to justify your request to replace her, then you must obtain the certification of a government doctor to support your claim about your current house helper. And even if the agency of your house helper asserts that they have examined her, you can still have your kasambahay evaluated by a government doctor to assess her mental fitness in order to determine if she can indeed be legally replaced by her agency.

With regard to your other rights related to the replacement of your kasambahay, it is important to note that the law also entitles you as an employer to a refund of seventy-five percent (75%) of the fees paid to the private employment agency, if the agency failed to provide a qualified replacement after a lapse of one (1) month from receipt of your request for replacement (Section 4, Rule III, Implementing Rules and Regulations of RA 10361).

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

DOLE issues holiday pay rules

MANILA, Philippines - The Department of Labor and Employment (DOLE) has reminded the public that today and Jan. 1, 2015 are considered regular holidays so employees working on these dates should be paid double their regular salary for the first eight hours.

For overtime work, employees shall be paid an additional 30 percent of their respective hourly rate.

“For work done during a regular holiday that also falls on an employee’s rest day, he shall be paid an additional 30 percent of double his/her daily rate,” DOLE yesterday noted.

For work done in excess of eight hours on a worker’s rest day, the employee would be entitled to an additional 30 percent of the hourly rate. But if he did not report for work on these days, he will still receive 100 percent of his salary.

DOLE said that for Dec. 31 and Jan. 2, which are declared special non-working days, the “no work, no pay” principle shall apply for employees who would not report for work “unless there is a favorable company policy practice or collective bargaining agreement granting payment on a special day.”         

Those who work during these days shall get an additional 30 percent of their salary for the first eight hours.       

source:  Philippine Star

Unfavorable decision by labor arbiter appealable

Dear PAO,
What is the remedy if a labor arbiter renders an unfavorable decision on my complaint?
Ben

Dear Ben,
You may appeal the unfavorable decision of the labor arbiter to the National Labor Relations Commission (NLRC) within 10 calendar days from the time that you received a copy thereof. If the 10th day falls on a Saturday, Sunday or holiday, the last day to perfect the appeal shall be the first working day following such Saturday, Sunday or holiday (Rule VI, Section 1, 2011 NLRC Rules of Procedure). Your appeal, however, may be entertained only on the following grounds: if there is prima facie evidence of abuse of discretion on the part of the labor arbiter; if the decision, award or order was secured through fraud or coercion, including graft and corruption; if made purely on questions of law; and/or if serious errors in the findings of facts are raised which, if not corrected, would cause grave or irreparable damage or injury to the appellant (Rule VI, Section 2, 2011 NLRC Rules of Procedure).

If any of the aforementioned grounds are present, you may file your appeal with the Regional Arbitration Branch, which had heard and decided your complaint. Your appeal shall be verified and made in the form of a memorandum of appeal, which shall state the grounds relied upon and the arguments in support thereof, the relief prayed for, and with a statement of the date the appellant received the decision that you are appealing. It shall also be accompanied by proof of payment of the required appeal fee and legal research fee and proof of service upon the other parties. The appellee, on the other hand, will be given 10 calendar days from receipt of your memorandum of appeal, to file his answer or reply thereto (Rule VI, Section 2, 2011 NLRC Rules of Procedure).

After the perfection of the appeal, the case will be transmitted to the commission, which will render a decision, taking into consideration the points raised by both parties. The decision of the NLRC shall become final and executory after 10 calendar days from receipt thereof by the counsel or authorized representative or the parties if not assisted by counsel or representative (Rule VII, Section 14, 2011 NLRC Rules of Procedure).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that 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

INFOGRAPHIC: Unemployment found lowest in 10 years

Source:  Businessworld

Contracting and subcontracting work: Drawing the line on a principal’s liability

AMID THE continuing development of our Philippine labor and employment system, job/service contracting or subcontracting arrangements continue to prevail as an established practice. In the Department of Labor’s Statistics on Employment Facilitation Services from 2011 up to the second quarter of 2013, job and service contractors or subcontractors placement had the second highest rate in job applicants’ placement, after private recruitment and placement agencies.

Complexities, however, arise when a contractor evades liabilities, causing its employees to go after the principal.

By reason of such chaos brought about by the employees’ misunderstanding of the law, courts are, at some point, easily swayed by the employees’ disposition. Thus, the manner by which a principal is held liable in a legitimate contracting arrangement should be reexamined.

In legitimate contracting, the principal is merely an indirect employer of his contractor’s employees. The law creates an employer-employee relationship only for a limited purpose, which is to ensure that the employees are paid their wages.

Being so, the principal becomes solidarily liable with the contractor if the latter fails to pay the employees’ wages even if he has paid the worker’s wage rates stipulated in the contract with the contractor.

The Labor Code provides that the liability of the principal will only be “to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him.”

This was interpreted in the case of Rosewood Processing, Inc. v. NLRC to mean that the principal’s liability to the contractor’s employees extends only to the period during which they were working for the principal. Likewise, in a GSIS v. NLRC et al. case, the Supreme Court ruled that the liability covers the payment of the employees’ salary differential and 13th-month pay during the time they worked for the principal.

Under Article 109 of the Labor Code, the principal can also be held liable for any violation of any provision of the Labor Code. This liability is qualified or limited liability. That is, if the liability involves an award for back wages and separation pay because of an illegal dismissal of the contractor’s employees, the liability should be solely that of the contractor, in the absence of proof that the principal conspired with the contractor in the commission of the illegal dismissal.

In two other cases, it was held that the solidary liability of a principal extends not only to wages but also to other violations of the Labor Code. These cases, however, were modified such that the contractor’s employees can no longer insist their claims of back wages and separation pay from the principal.

As an example, in Meralco Industrial Engineering Services Corporation v. NLRC, the Supreme Court ruled that Article 109 of the Labor Code must be read in relation to Articles 106 and 107 and, therefore, the principal is only solidarily liable with the contractor if the latter fails to pay the wages of its employees.

This principle is also applied in Vigilla et al. v. Philippine College of Criminology, Inc., which established that, in legitimate contracting arrangement, the principal becomes jointly and severally liable with the contractor only for the payment of the employees’ wages whenever the contractor fails to pay them, and is not responsible for any claim made by the contractor’s employees.

It follows then that the liability of the principal under Article 109 of the Labor Code is limited by Article106, which limits the liability of a principal to the wages of the contractor’s employees. As such, it is on good authority that the current rule pronounced in the Rosewood case and cases thereafter remains good law.

Other than the obligation of the contractors and principals to strictly comply with the requisites for legitimate contracting arrangements, courts also have the duty to observe legal precedents laid down by the Supreme Court in order not to make the principals liable for claims that are beyond the principal’s responsibility.

Mayette H. Tapia is an associate of the Labor and Employment Department of the Angara Abello Concepcion Regala & Cruz Law Offices.

mhtapia@accralaw.com

source:  Businessworld

Protecting rights, interests of working children in mass media

Dear PAO,
Lately, I noticed the rise of popularity and exposure of children and teenagers in mass media. I believe these young people are happy with their work and their rights and interests are protected. But I am curious about the rights of a working child. May I know what his/her rights are especially with respect to his/her working hours and income?
Popo

Dear Popo,
Other than the requirement of a special work permit before engaging children for work, our laws provide conditions aimed at protecting the rights and interests of working children. In general, there is a prohibition on engaging children in the worst forms of labor such as slavery, prostitution and pornography, engagement in illegal activities or those that are hazardous or likely to be harmful to the health, safety or morals of children (Section 5, Republic Act (RA) 7610 as amended by RA 9231). There is also a prohibition on engaging children as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts, gambling or any form of violence or pornography (Sec. 6, RA 7610 as amended by RA 9231).

Moreover, employers of children engaged in public entertainment are strictly required to ensure the protection, health, safety, morals and normal development of the child, institute measures to prevent the child’s exploitation or discrimination and formulate and implement a continuing program for training and skills acquisition of the child. This includes providing a working child with access to at least primary and secondary education (Sec. 13, RA 7610 as amended by RA 9231).

To implement this provision of law, the Rules issued by the Department of Labor and Employment (DOLE) prohibit employers from requiring children to work during school hours, or hinder access to education during school days.

As to working hours, there are special rules for working children that mainly state that children cannot be required to render overtime and late-night work.

Specifically, children below fifteen (15) years of age can only be required to work up to twenty (20) hours a week with daily work not exceeding four (4) hours each day, and they are not allowed to work between eight o’clock in the evening and six o’clock in the morning of the following day. On the other hand, children fifteen (15) years of age but below eighteen (18) cannot be compelled to work more than eight (8) hours a day, and in no case beyond forty (40) hours a week, and they are not allowed to work between ten o’clock in the evening and six o’clock in the morning of the following day (Sec. 12-A, RA 7610 as amended by RA 9231). Hence, a child cannot be required to render overtime or late-night work.

With respect to income from work, the law provides that it belongs to the child. The parents or legal guardian only serve as administrators of the income of the working child and are not free to dispose of the income according to their discretion. According to the law, the income shall be set aside primarily for support, education or skills acquisition of the child, and secondarily to the collective needs of the family. But not all of the income can be used for the needs of the family. Only a maximum of twenty percent (20 percent ) of the child’s income may be used for the collective needs of the family (Sec. 12-B, RA 7610 as amended by RA 9231). The rest must either be used or saved for the benefit of the working child. In connection with this rule and in compliance with the law and established rules, at least thirty percent (30 percent) of the earnings of a child shall be deposited in a trust fund in case the income amounts to at least two hundred thousand pesos (P200,000.00) annually, or in a savings account in case the annual income is below this amount (Sec. 18, DOLE Department Order No. 65-04).

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