Philippine labor laws that employers must know

October 18, 2009 by  
Filed under Business Law

boss-chairKnowing laws on labor and employment is vital to one’s business because a minor violation could lead you to big trouble. Most employers, especially those who do not have legal counsel, violate these laws usually not because they intend to, but because of sheer ignorance. Unfortunately, ignorance of the law does not excuse them from complying with it. Companies have closed shop after their employees slapped them with labor suits which ended up with these companies paying huge amounts of money representing unpaid wages or benefits and damages. To avoid being in the same situation, the following are relevant laws which you should always bear in mind as you go about your business and deal with your employees:

1.     “Regular” employment

Article 280 of the Labor Code of the Philippines (LCP) describes different types of employment namely: regular, casual, project or seasonal. These distinctions are important because some rights and benefits attach only to regular employees, especially the right to security of tenure.

The most common type of employment now is the fixed term employment or contractual. Most companies prefer this to save labor costs because if they hire regular employees, they cannot terminate their employment expediently without valid and legal cause and the payment of separation pay and other benefits.

So if you do not intend to consider the person hired as a regular employee, you must inform him on the day he starts to work – that is, whether he is a casual, seasonal, project or a fixed term employee. If not, then he will be considered regular even if the employment contract says otherwise. Also in some instances, even if it is expressly stipulated to be a non-regular type, if the nature of the work is usually necessary and desirable to your business, then he will still be considered regular.

2.     Probationary employment

The period should not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. (Article 281) A probationary employee may be dismissed for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known to him at the time he is hired. If he is not informed of these reasonable criteria, he will be considered a regular employee. So, employers should watch out for this requirement. Also, a probationary employee may become regular if he is allowed to work after the probationary period.

3.     Minimum employable age

The minimum employable age in the Philippines is fifteen years, with the exception of some instances when a child below 15 may be hired after complying with certain conditions. (See RA 7610, Sec 12, as amended by RA 7658 and RA 9231; see also DOLE Department Order No. 65-04).

4.     Prohibition against stipulation of marriage

You cannot require as a condition of employment or continuation of employment that a woman employee shall not get married. It is also unlawful to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. (Article 136, LCP)

5.     Anti-sexual Harassment law

An employer commits sexual harassment when a sexual favor is made as a condition for hiring and for continued employment or reemployment. (Section 3, RA 7877) 

6.     Minimum wage and other benefits

You must comply with the minimum wage rates prescribed by your respective Regional Tripartite Wages and Productivity Boards authorized by the state to fix the minimum wage. Note that there are civil and criminal violations for non-compliance with these wage orders.

The employer must also pay the employees the compensation and other benefits to which they are entitled under the Labor Code such as overtime pay, night shift pay, holiday pay, etc. as well as those provided under special laws such as 13th month pay.

7.     Form, payee, time and place of payment of wages

Form. You should, as a rule, pay in cash. Payment by promissory notes, vouchers, coupons, tokens, tickets, or chits is prohibited. This is illegal even if both the employee and employer agreed. You may, however, pay by check or money order but you must comply with guidelines prescribed by the Department of Labor. (See Article 102, LCP; also Sec 2, Rule VIII, Book III, IRR)

Time. Wages should be paid at least once every 2 weeks or twice a month at intervals not exceeding 16 days. The only exception is when there is force majeure or circumstances beyond the employer’s control, but he should pay immediately after such force majeure or circumstances have ceased.  (See Article 103, LCP)

Place.  As a rule, the employer should pay at or near the place of work, except in cases of deteriorating peace and order situation and emergencies or calamities which makes payment in the workplace impossible. But the employer is required to provide transportation and the time for traveling should be considered as compensable hours worked. (See Article 104, LCP; also Sec 4a, Rule VIII, Book III, IRR)

Payment may also be made through banks or through an ATM facility, but guidelines provided by the Department of Labor must be complied with (See Article 104, LCP; also Sec 4, Rule VIII, Book III and Labor Advisory on Payment of Salaries through ATM)

8.     Other prohibited acts or practices

Gender discrimination

“It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex.” (Article 135, LCP)

Compulsory Patronage

You cannot compel employees to purchase your goods or services or to patronize any store or products of any other person. (Article 112, LCP). It is unlawful for the employer to interfere with the employee’s freedom to spend his wages. Similar acts are punished criminally under Article 288 of the Revised Penal Code of the Philippines.

No wage deductions

It is a common practice in the Philippines that creditors demand that the debtor-employee’s wage be paid directly to them. Some employers allow deductions from the wage or payment of the entire amount to these creditors not knowing that this is illegal. Under Article 105 of our Labor Code, payment should be made directly to the employee and under Article 113, no deductions from the wages are allowed.

There are however exceptions to these provisions:

1. when the employee authorized his employer in writing to pay his wages to a member of his family;

2. payment to another person of any part of the employee’s wages is authorized by existing law such as that under the SSS law where remittance is a duty of the employer,

3. payment  for insurance premiums of the employee

4  payment for union dues where the right to check-off has been recognized by the employer in accordance with a collective agreement or authorized in writing by the individual employees concerned; or

5. in case of death of the employee, payment may be made to his heirs

6. deductions for facilities – These are goods or services provided by the employer to the employee for the benefit of the employee and his family.

7. deductions for loss or damages – This is allowed if the practice is recognized in the industry (such as deductions for car washing expenses for taxis) or necessary or desirable to the business.  But the employer must prove clearly that it is indeed the employee who is responsible for the loss or damage.

9.     Unfair Labor Practices

These are acts which violate the constitutional right workers to organize and are considered inimical to the legitimate interests of both the worker and the employer, especially their right to bargain collectively and deal with each other peacefully. Unfair labor practices may be committed by employers (Art 248, LCP) and by labor organizations or unions (Art 249, LCP).

10. Employee’s right to self-organization and the right to strike

These rights are expressly provided by the 1987 Constitution and the Labor Code.  Employers should not interfere with or deny their employees their right to form organizations for their mutual aid or protection and to form unions for the purpose of negotiating the terms and conditions of employment with their employer. Employees also have the right to strike but this may only be exercised after complying with guidelines provided by the DOLE. Otherwise, the strike may be considered illegal and may be a cause for terminating their employment. 

11.  Valid termination of employment

If you want to dismiss an employee from his job, it should be for a cause provided by law and you must comply with procedural requirements. Just causes which are voluntary acts of the employee are enumerated in Article 282 (LCP) while authorized causes, which are attributed to the employer, are provided by Article 283 and 284.

For a valid dismissal, substantive (Art. 282, 283, 284) and procedural requirements (Article 277b; also Department Order No. 9, June 21, 1997) must be complied with.  

Just 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. Analogous or similar causes

Procedure for termination due to just causes: (Twin Notice Rule)

(1) Serve the first written notice on the employees containing the specific ground/s for termination and a directive that they are given the opportunity to submit their written explanation within a reasonable period. 

(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to:

(a) explain and clarify their defenses to the charge against them;

(b) present evidence in support of their defenses; and

(c)rebut the evidence presented against them by the management. 

During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.

Note however, that in a recent case decide by the Supreme Court, a hearing or conference is not mandatory. It is enough that the employee is given an opportunity to be heard, which could be through submission of position papers or other evidence.

(3)After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that:

(a) all circumstances involving the charge against the employees have been considered; and

(b) grounds have been established to justify the severance of their employment

Authorized causes

1. Installation of labor saving device

2. Redundancy

3. Retrenchment to prevent losses

4. Closure due to serious business losses

5. Disease

Procedure for termination due to authorized causes:

(1) Serve a written notice upon the worker at least one month or 30 days before the intended date of the termination. This is to inform the employee of the impending loss of his employment so he could at the earliest opportunity look for prospective jobs.

(2) Serve a written notice on the DOLE at least one month or 30 days before the intended date of the termination. This is in order for the DOLE to:

a. Determine the validity of the dismissal; and

b. To intervene for a possible conciliation or mediation

(3) To give separation pay such as when termination is due to redundancy, but not when the employer is suffering from severe financial losses.

If you do not comply with procedures, even you have a valid cause for terminating the employment; you may still be required to pay damages: Fifty thousand pesos (P50,000) if the cause was attributed to you as employer or thirty thousand pesos (P30,000) if the cause was attributed to the employee.

Conclusion

The key to avoiding violations of labor and employment laws is by being a good employer – that is, giving your employees at least the minimum benefits and standard working conditions provided by law, allowing them to reasonably exercise their rights as workers, especially the right to self-organize and always exercising good faith and fairness in dealing with them. As employer, you must not only think of the profit you can earn from your business, but also the human factor in every employment relationship.  

Source: Presidential Decree No.442, as amended (click to download labor code e-book)

Comments

2 Responses to “Philippine labor laws that employers must know”
  1. jebelle says:

    Policies are just simply policies if not implemented well. I don't think labor rules set by the government are complied by all agencies especially by the private entities.Pity are those workers who give more but receive less from their employers.Are there any way to solve this?hmm

  2. viclogic says:

    Yes you are right, policies are just policies if not implemented well. There are many companies who don't comply with the laws – perhaps they don't know the law or they are greedy to ignore the law just to cut on personnel costs. To solve this? IMO, workers should be educated by the labor laws – they should know their rights and they should exercise them. The NLRC is there to help. But of course, not all employees can take the risk, especially if their jobs are the only thing that currently feed them everyday.