­

Attorneys of the Philippines Legal News

Welcome to our legal news pages. Here is where we provide updates about what's happening in Philippines legal news, and publish helpful articles and tips for Pinoys researching legal matters.

Minimum Wage Increase In Central Luzon And Cagayan Valley In Effect

Aside from putting an end to contractualization, workers who consider themselves as minimum wage earners are also hoping for an increase in their wage rates. On May 1, which also happened to be the celebration of Labor Day, Cagayan Valley and Central Luzon finally got pay increases. Rosalinda Baldoz, labor secretary said that the provinces of Isabela, Quirino, Batanes, Cagayan and Nueva Viscaya currently have the minimum wage of P264 to P300.

The previous rates of Cagayan Valley provinces ranged from P219 to P255. According to the head of Department of Labor and Employment (DOLE) in Cagayan Valley, Pacifico Moralit, the said pay hike was the highest increase the region got for over two decades. Aside from Cagayan Valley, Central Luzon will also receive an increase of P7 in their wage.

“ART. 123. Wage Order. — Whenever conditions in the region so warrant, the Regional Board shall investigate and study all pertinent facts; and based on the standards and criteria herein prescribed, shall proceed to determine whether a Wage Order should be issued. Any such Wage Order shall take effect after fifteen (15) days from its complete publication in at least one (1) newspaper of general circulation in the region.

“In the performance of its wage determining functions, the Regional Board shall conduct public hearings/consultations, giving notices to employees’ and employers’ groups, provincial, city and municipal officials and other interested parties.

“Any party aggrieved by the Wage Order issued by the Regional Board may appeal such order to the Commission within ten (10) calendar days from the publication of such order. It shall be mandatory for the Commission to decide such appeal within sixty (60) calendar days from the filing thereof.

“The filing of the appeal does not stay the order unless the person appealing such order shall file with the Commission an undertaking with a surety or sureties satisfactory to the Commission for the payment to the employees affected by the order of the corresponding increase, in the event such order is affirmed.”

“ART. 124. Standards/Criteria for Minimum Wage Fixing. — The regional minimum wages to be established by the Regional Board shall be as nearly adequate as is economically feasible to maintain the minimum standards of living necessary for the health, efficiency and general well-being of the employees within the framework of the national economic and social development program. In the determination of such regional minimum wages, the Regional Board shall, among other relevant factors, consider the following:

“(a) The demand for living wages;

“(b) Wage adjustment vis-a-vis the consumer price index;

“(c) The cost of living and changes or increases therein;

“(d) The needs of workers and their families;

“(e) The need to induce industries to invest in the countryside;

“(f) Improvements in standards of living;

“(g) The prevailing wage levels;

“(h) Fair return of the capital invested and capacity to pay of employers;

“(i) Effects on employment generation and family income; and

“(j) The equitable distribution of income and wealth along the imperatives of economic and social development.

“The wages prescribed in accordance with the provisions of this Title shall be the standard prevailing minimum wages in every region. These wages shall include wages varying within industries, provinces or localities if in the judgment of the Regional Board conditions make such local differentiation proper and necessary to effectuate the purpose of this Title.

“Any person, company, corporation, partnership or any other entity engaged in business shall file and register annually with the appropriate Regional Board, Commission and the National Statistics Office an itemized listing of their labor component, specifying the names of their workers and employees below the managerial level, including learners, apprentices and disabled/handicapped workers who were hired under the terms prescribed in the employment contracts, and their corresponding salaries and wages.

Beware Of Job Scams In Social Media Using A Hotel Company

These days, technology has made it easy for job seekers to search for employment. However, not all jobs spread through job placement sites and social media are legitimate. Secretary Rosalinda Dimapilis-Baldoz of Department of Labor and Employment (DOLE) warns job seekers against social media job scams. The warning was issued by Philippine Overseas Employment Administration (POEA). The agency advises applicants to be more cautious because this employment scam uses a hotel company’s name. Baldoz added that aside from sending e-mails to jobseekers, these scammers are also using social media to lure people who are searching for employment using social channels such as Facebook.

According to the scammers Facebook post, Marriott Hotel in Canada is in need of new workers. The said hotel company was offering jobs for various positions such as technicians, comedians, models, actors, stewards and other related hotel job categories. Although these scammers use reputable companies to attract potential victims, it is easy to identify red flags once jobseekers are cautious. Scammers often use e-mail and social media to post fake job openings. However, for a company as reputable as Marriott Hotel, it is very unlikely to receive alerts on their job openings through e-mail or social media.

Unsuspecting victims are requested to send resume, application and other essential documents. The scammer will suggest sending these documents to a fraudulent email address, which is usually a free web-based email. Marriott Hotel has its own email address and will not contact applicants using free e-mail service. Once the scammers earn the applicant’s trust, they are going to request for a certain amount of money to be sent via bank or wire transfer. The scammers will trick applicants into believing that the money will be used as payment for visa, immigration and processing fees. If you are dealing with a legitimate company, you will not be required to shell out some cash just to be considered for employment.

Another red flag is when the job openings have grammatical or spelling mistakes. A job opening from a legitimate company such as Marriott Hotel is free of grammatical and spelling errors as they are professionally written. POEA advises jobseekers to follow precautionary measures so illegal recruitment can be avoided. When searching for employment, POEA encourages jobseekers to deal with recruitment agencies licensed by POEA.

Avoid agencies that require you to make a payment for processing your papers. Do not deal with an unauthorized person of a licensed agency. If an agency promises overseas employment without requiring an applicant to undergo proper screening and application process, this is also considered a red flag. For available job orders, applicants may visit POEA website.

Job Contracting: Where Do You Exactly Draw The Line?

These days, the employers and employees inclined into job-contracting are significantly increasing. However, job contracting schemes cut both ways: the negative and the positive. The positive aspects of job contracting are outlined in House Bill No. 380, but when you look at the big picture, there are some issues that job contracting needs to address. For one, contractual workers are hired by agencies and with this scheme, some workers are underpaid and not getting the benefits due to them.

Contracting and Subcontracting

As defined by Department of Labor and Employment (DOLE), contracting or subcontracting is an arrangement where an employer (referred to as the principal) enters an agreement to farm out with a subcontractor or contractor a job’s completion. There is a predetermined or definite period for the completion of a specific job. In most cases, the service or work is completed within outside the principal’s premises.

“1)  Minimum capitalization of at least P3 Million

•  fully paid up capital for corporation, partnership and cooperative;

•  net worth for single proprietorship

2) Proof of ownership or lease agreement on tools, equipment, machineries and work premises

3) Payment of P25,000.00 registration fee

4) Proof of financial capacity to pay the wages and benefits of its workers using the Net Financial Contracting Capacity (NFCC) formula in government procurement

5)  Control over the performance of the work of the employee deployed or assigned to render the contracted work or services

6)  Not engaged in labor-only contracting arrangement as provided in Section 6 Certificate of Bank Deposits

7)  Not engaged in prohibited activities enumerated in Section 7

8)  Observes the rights of the workers as provided in Section 8

9)  Observes the required contracts under Section 9

10) Not delisted from the registry of legitimate contractor/subcontractor”

Contracting or subcontracting will only be legitimate if:

“a. the contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility, according to its own manner and method, and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof;

b. the contractor or subcontractor has substantial capital or investment;

c. The agreement between the principal and the contractor or subcontractor assures the contractual employees entitlement to all occupational safety and health standards, free exercise of the right to self organization, security of tenure, and social and welfare benefits.”

The contractor’s employees are also entitled of the following:

“(a) safe and healthful working conditions;

(b) labor standards such as 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;

(c) retirement benefits under the SSS or
retirement plans of the contractor, if there are any;

(d) social security and welfare benefits;

(e) self-organization, collective bargaining and peaceful concerted activities; and

(f) security of tenure.”

If a worker feels that the contractor or subcontractor has violated the provisions of DO 18-A,  they can file a complaint so the contractor’s registration will be cancelled. Complaint must be filed before the DOLE Regional Office.

Unremitted SSS Contributions: Are Employers Liable?

Is there a penalty for employers who fail to remit employees’ SSS contributions? By strengthening Republic Act 8282, there will be stiffer penalties for delinquent employers. Problems with SSS contributions have created a negative effect on SSS pensioners and P1200 per month cannot support the pensioners’ daily needs. According to Neri Colmenares, the uncollected contributions should be used in increasing the pension of most SSS members, which include OFWs. There are thousands of cases where employers do not remit SSS contributions. While it reflects on the employee’s payslip, the anomaly remains unexplained and undiscovered until the employee resigns.

Section 28 of RA 8282 states that non-remittance of worker’s SSS contributions shall be punishable by:

“a fine of not less than Five thousand pesos (P5,000.00) nor more than Twenty thousand pesos (P20,000.00), or imprisonment for not less than six (6) years and one (1) day nor more than twelve (12) years, or both, at the discretion of the court: Provided, That where the violation consists in failure or refusal to register employees or himself, in case of the covered self-employed or to deduct contributions from the employees’ compensation and remit the same to the SSS, the penalty shall be a fine of not less Five thousand pesos (P5,000.00) nor more than Twenty thousand pesos (P20,000.00) and imprisonment for not less than six (6) years and one (1) day nor more than twelve (12) years.

"(f) If the act or omission penalized by this Act be committed by an association, partnership, corporation or any other institution, its managing head, directors or partners shall be liable for the penalties provided in this Act for the offense.

"(g) Any employee of the SSS who receives or keeps funds or property belonging, payable or deliverable to the SSS and who shall appropriate the same, or shall take or misappropriate, or shall consent, or through abandonment or negligence, shall permit any other person to take such property or funds, wholly or partially, or shall otherwise be guilty of misappropriation of such funds or property, shall suffer the penalties provided in Article Two hundred seventeen of the Revised Penal Code.

"(h) Any employer who, after deducting the monthly contributions or loan amortizations from his employee’s compensation, fails to remit the said deduction to the SSS within thirty (30) days from the date they became due, shall be presumed to have misappropriated such contributions or loan amortizations and shall suffer the penalties provided in Article Three hundred fifteen of the Revised Penal Code.

"(i) Criminal action arising from a violation of the provisions of this Act may be commenced by the SSS or the employee concerned either under this Act or in appropriate cases under the Revised Penal Code: Provided, That such criminal action may be filed by the SSS in the city or municipality where the SSS office is located, if the violation was committed within its territorial jurisdiction or in Metro Manila, at the option of the SSS.”

Basic Rights Every Employee Should Know

Why does unfair labor practice exist? Is it because of employers who are simply taking advantage of employees’ lack of knowledge of labor laws? When employees are not aware of their rights, it is easy for them to shrug off irregularities. There are some companies that implement open door policy, but good employees resign because the issues are not properly resolved.   While it may not be completely save an employee from being denied of their rights, it still pays off to know basic employee rights.

“ The Bureau of Working Conditions, a staff department of the Department of Labor and Employment, compiled a list of Basic Rights that every worker is entitled to. These rights ensure the safety and health of all workers.

1. Equal work opportunities for all
The State shall protect labor, promote full employment, provide equal work opportunity regardless of gender, race, or creed; and regulate relations between employees and employers.

2. Security of tenure
Every employee shall be assured security of tenure. No employee can be dismissed from work except for a just or authorized cause, and only after due process.

Just cause refers to any wrongdoing committed by an employee; authorized cause refers to economic circumstances that are not the employee’s fault.

3. Work days and work hours
An employee must be paid their wages for all hours worked. If their work hours fall between 10:00 p.m. and 6:00 a.m., they are entitled to night shift pay in addition to their pay for regular work hours. If they work over eight hours a day, they are entitled to overtime pay.

4. Weekly rest day
A day-off of 24 consecutive hours after six (6) days of work should be scheduled by the employer upon consultation with the workers.

5. Wage and wage-related benefits
Wage is the amount paid to an employee in exchange for to the service that they rendered to their employer. Wage may be fixed for a given period.

6. Payment of wages
Wages should be paid directly to the employee in cash, legal tender, or through a bank.
Wages shall be given not less than once every two weeks or twice within a month at intervals not exceeding 16 days.

7. Female employees
Women are prohibited from engaging in night work unless the work is allowed by the following rules: industrial undertakings from 10 p.m. to 6 a.m., commercial/non-industrial undertakings from 12 m.n. to 6 a.m., or agricultural takings at night provided that she has had nine consecutive hours of rest.

Welfare facilities, such as separate dressing rooms and lavatories, must be installed at the workplace.

8. Employment of children      
The minimum employment age is 15 years of age. Any worker below 15 years of age should be directly under the sole responsibility of parents or guardians provided that work does not interfere with the child’s schooling or development.

The minimum age of employment is 18 years for hazardous jobs, and 15 years for non-hazardous jobs.

9. Safe working conditions
Employers must provide workers with every kind of on-the-job protection against injury, sickness or death through safe and healthful working conditions.

10. Rights to self-organization and collective bargaining
Every worker has the right to self-organization, i.e., to form or to join any legitimate workers’ union, free from interference of their employer or the government. All workers may join a union for the purpose of collective bargaining and is eligible for union membership on the first day of their employment.

Collective bargaining is a process between two parties, namely the employer and the union, where the terms and conditions of employment are fixed and agreed upon. In collective bargaining, the two parties also decide upon a method for resolving grievances. Collective bargaining results in a contract called a Collective Bargaining Agreement (CBA).”

Another great source of information about labor codes can be found in the official website of DOLE. This website provides answers to work-related concerns. However, an employee should keep in mind that labor laws can serve as a guide so violations in the workplace are prevented. Employees should also know where to draw the line and should not use these labor laws as an instrument to blackmail an employer because in a country where justice system is sluggish, there is still such a thing as due process.

Human Trafficking, Illegal Recruitment And A Promise Of A Better Life

When victims of illegal recruitment and human trafficking are asked for reasons why they choose to bite the bait instead of waiting for a legal job opportunity to come, there is only one answer that comes to mind: a promise of a better life. Poverty drives a person to make hasty decisions. Someone who is desperate to free himself from poverty’s tight grip will focus on the solution, regardless of its sources. Law becomes non-existent as these unsuspecting victims want to improve their life.

The grass is greener on the other side because those fresh blades of grass are made of plastics. They are facades of the harsh reality that greets desperate job-seekers who just want a better life. They are victims who simply wish to have food on their plate or enjoy pleasures of life. Prostitution, organ sale, sex tourism and other illegal jobs can be in the guise of a decent job to lure people into recruitment.

The ripple effect of illegal recruitment becomes evident in the case of Mary Jane Veloso, an OFW who was put to prison due to being suspected as a drug mule and presently, on Indonesia’s death row. Due aspiring for a better life, illegal recruiters seized the opportunity to take advantage of Veloso. While Veloso was hoping for a better future ahead of her, human traffickers were up to something else.

Veloso’s boat of hope sinks before it reaches the sea. Sad, unfortunate, disheartening. Mary Jane Veloso represents millions of OFWs who continue to fight a difficult battle against poverty and a poor excuse of a system. Human trafficking schemes continue to turn dreams into nightmare. There are government agencies such as POEA that provide information to job-seekers to avoid falling victim to illegal recruitment and human trafficking, but people need more than just a piece of information. When your family is starving to death, wouldn’t you consider  once-in-a-lifetime job offer appealing?

Section 10 of Republic Act No. 10364 or the Expanded Anti-Trafficking in Person Act of 2012 provides details of penalties and sanctions for those who this law.

“SEC. 10. Penalties and Sanctions. – The following penalties and sanctions are hereby established for the offenses enumerated in this Act:

“(a) Any person found guilty of committing any of the acts enumerated in Section 4 shall suffer the penalty of imprisonment of twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) but not more than Two million pesos (P2,000,000.00);

“(b) Any person found guilty of committing any of the acts enumerated in Section 4-A of this Act shall suffer the penalty of imprisonment of fifteen (15) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00);

“(c) Any person found guilty of Section 4-B of this Act shall suffer the penalty of imprisonment of fifteen (15) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00);

“In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment agency involved in trafficking. The license of a recruitment agency which trafficked a child shall be automatically revoked.

“(d) Any person found, guilty of committing any of the acts enumerated in Section 5 shall suffer the penalty of imprisonment of fifteen (15) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00);

“(e) Any person found guilty of qualified trafficking under Section 6 shall suffer the penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) but not more than Five million pesos (P5,000,000.00);

“(f) Any person who violates Section 7 hereof shall suffer the penalty of imprisonment of six (6) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00);

“(g) If the offender is a corporation, partnership, association, club, establishment or any juridical person, the penalty shall be imposed upon the owner, president, partner, manager, and/or any responsible officer who participated in the commission of the crime or who shall have knowingly permitted or failed to prevent its commission;

“(h) The registration with the Securities and Exchange Commission (SEC) and license to operate of the erring agency, corporation, association, religious group, tour or travel agent, club or establishment, or any place of entertainment shall be cancelled and revoked permanently. The owner, president, partner or manager thereof shall not be allowed to operate similar establishments in a different name;

“(i) If the offender is a foreigner, he or she shall be immediately deported after serving his or her sentence and be barred permanently from entering the country;

“(j) Any employee or official of government agencies who shall issue or approve the issuance of travel exit clearances, passports, registration certificates, counseling certificates, marriage license, and other similar documents to persons, whether juridical or natural, recruitment agencies, establishments or other individuals or groups, who fail to observe the prescribed procedures and the requirement as provided for by laws, rules and regulations, shall be held administratively liable, without prejudice to criminal liability under this Act. The concerned government official or employee shall, upon conviction, be dismissed from the service and be barred permanently to hold public office. His or her retirement and other benefits shall likewise be forfeited; and

“(k) Conviction, by final judgment of the adopter for any offense under this Act shall result in the immediate rescission of the decree of adoption.”

Law On Employment Of Night Workers

With the prevalence of BPO industries, more and more people are working at night. In the past nurses, cops and doctors were the only ones who are known for working during nighttime. If you are a night worker or you know someone who is, a knowledge on the law on night workers can help you understand your rights as an employee. 

Who are considered night workers?

Any employed individual whose job requires rendering substantial number of hours of night work is considered a night worker. More often than not, the night work exceeds a specified limit, which the Secretary of Labor shall fix after the labor organizations and employers have been consulted. 

The coverage of the amendments under R.A. 10151

The amendments apply to all individuals, who are permitted or employed to work at night, except the ones who are employed in stock raising, agriculture, maritime transport, fishing and inland navigation. It should be during a period of not less than seven consecutive hours. This includes the interval from midnight until five o’clock in the morning. The coverage will also be determined by the Secretary of Labor and Employment and the labor organizations and employers must be consulted. 

Health assessment

If workers request to undergo free health assessment, the request needs to be granted. The health assessment must be given before taking a job as a night worker and it should also be performed at regular intervals. They should also undergo health assessment if they are experiencing health problems during such an assignment, which is not due to the factors involved in night work. If the employee is deemed unfit for night work, the findings will not be transmitted without the worker’s consent. Furthermore, the findings will not be used to their detriment. 

Employees Who Are Deemed Unfit For Night Work 

• Night workers who are unfit for night work due to health reasons will be transferred to a similar job practicable, which they are considered suitable to work. 

• When transfer to a similar job is not practicable, the employees will be granted the same benefits as other employees who are unable to work. 

• If the night worker has been diagnosed to be temporarily unfit for night work, they will be given protection against termination or dismissal due to health reasons. 

Women can be employed as night workers, but measures must be taken to ensure that there is an alternative to night work for women workers. Nursing mothers and pregnant women are also allowed to work if a competent physician has provided a certification that they are indeed fit to render night work. It should be certified by a physician other than the company physician. 

The Law On Wage Increase

With prime commodities going nowhere but up, wage increase has been in demand. However, the increase in the wage involves a process to determine how much the employee is going to receive. This is where the Wage Order comes in.  The Regional Board is going to gather pertinent facts following certain criteria and standards. With these facts, the board shall determine whether or not a Wage Order will be issued. The Wage Order fixes the wage in the region. The Wage Order covers private employees but not government employees. It should commence after 15 days from the completion of at least one newspaper publication. This is under Art. 123, Labor Code, which was amended by Republic Act RA 6727 or also referred to as the Wage Rationalization Act. 

When does wage increase take effect?

Only one wage increase is allowed every year hence, a wage order will only be issued once a year. If a wage increase is requested within the 12-month period, it shall not be entertained. However, there is an exception to the rule, following the supervening condition. For instance, if there is a drastic increase in the prices of basic goods and services or petroleum products, the wage increase within the 12-month period may be considered. The Regional Wage Boards will determine supervening condition’s existence and will be confirmed by the National Wages and Productivity Council (NWPC). The Regional Wage Boards is responsible for determining and fixing minimum wage rates applicable in their provinces, regions or industries. 

A Wage Order cannot be issued without a public hearing or consultation being conducted. Employees and employers’ provincial, city, groups and municipal officials will be given notices as well. 

The Criteria For Fixing The Minimum Wage

There are relevant factors that must be considered before the increase in the wage takes effect:

• Standards of living improvements;

• The increase in the cost of living;

• Living wages demands;

• Adjustment on wage based on the consumer price index;

• The needs of workers and their families;

• Effects on family income and employment generation;

• The wage levels;

• The demand for inducing industries to invest in the countryside; and

• The income’s equitable distribution.

Both the employer and the employee must observe the minimum wage that was provided in the Wage Order. The employer is prohibited to pay an amount that is lower than amount stipulated in the Wage Order and the employee cannot demand an amount higher than the amount fixed in the Wage order. In some cases, freedom to bargain is allowed in particular enterprises and firms.  

Everything You Need To Know About Employment Termination For Health Reasons 

Employees are mandated to undergo annual medical examination to keep their health condition in check. However, there are instances when an employee suffers from an illness that may cause his employment to be terminated. Employers have the right to terminate an employee due to medical or health reasons. It does not happen in an instant without proving that the employee has already been examined and found to be unfit or unable to carry out daily duties. 

How does employment termination take place on the grounds of ill-health?

• An employee will be subject for termination if his illness has been found detrimental to his job or that of his colleagues. 

• If the disease has been found to be incurable after six months of proper medical treatment, the employment will be at risk of termination. 

• Employment termination will also be given if the employee has already suffered from a disease. 

Medical Examinations 

Arrangements will have to be made if an employee cannot perform his duties due to illness. The supervisor will discuss the situation with the Human Resource Consultant and the employee will have to undergo medical examination to find out more about the illness. 

There should be at least one month’s written notice prior to the medical examination and it should be completed within the same period. Once the result of the medical examination has been released, both the employer and the employee will get a copy of the report. The medical certificate is essential because this will be used as the basis for the employees’ status of employment if they have been diagnosed. 

If employees are no longer advised to continue their employment, they must present a certification, which is signed by a public health authority or competent medical practitioner, stating medical reasons. The certification should include the stage of illness and the treatment that the employee has undergone. 

A leave of absence will be taken if the employee’s ailment can be cured within the period of six months. Once the employee has nursed himself back to health and has been restored to his best health condition, he has the right to be reinstated to the position he previously held prior to taking the leave of absence. 

You must also take note that disability differs from disease. Even if the employee has permanent disability, it cannot be used as a ground for employment termination. In fact, an employer can be charged for a criminal offense if a disabled employee has been terminated.   Employers have no right to terminate an employee if the disease has just been suspected. There should be a concrete proof, duly signed by an authorized physician that the employee is already incapable of performing the duties.



­