Philippines - The Employment Law Review - Edition 9 - The Law Reviews
Posted in Labor Jurisprudence, Labor Laws | Tagged atty. elvin villanueva, philippine labor laws, test of employer-employee relationship | Leave a comment . Almirante: Employer-employee relationship. clear circumvention of the security of tenure pursuant to Articles and of the Labor Code. A basic concept in labor law is that of “employer-employee relationship”. When is an employer-employee relationship deemed to exist?.
The non-compete clause must be in writing. Other forms of restrictive covenants, such as confidentiality clauses, non-disclosure agreements and non-solicitation contracts, are also valid under Philippine law, and may be included as part of an employment agreement provided their terms are reasonable.
A court assessing whether the restrictive covenant is reasonable may consider the following: Regulations issued by DOLE also stipulate that employees are entitled to a one-hour lunch break during the work day and minute rest periods in the morning and afternoon.
The lunch break is not considered part of working time. Philippine law also mandates at least one rest day — a full hour period — for every six days worked by an employee. An employee may be compelled to work overtime or on his or her rest day under certain special conditions, subject to the payment of a premium wage rate.
These conditions are specifically enumerated in the Labour Code, and contemplate situations where overtime or rest day work is urgent or intended to address extraordinary circumstances. There is generally no limit to the number of foreign workers that an employer may engage, but the number of such incumbents is considered in the DOLE permitting process.
Local employment laws apply to the foreign worker, subject to conflict-of-laws principles in the event his or her employment contract is executed abroad. As a general rule, multiple contacts between incidents of his or her employment and the Philippines e. The fact that the employer has sponsored the foreign worker for an AEP is generally also considered in exercising Philippine tribunal jurisdiction. As a general rule, foreign workers engaged by a Philippine-resident employer, are subject to tax.
Similar to Filipino employees, the employer has the obligation to withhold and remit the applicable percentage from compensation as income tax. Prior notice of these rules, but not employee consent, is required for the rules to be effective. A usual practice is for the employee to confirm his or her receipt in writing of applicable work rules, on the day he or she is hired.
employer-employee relationship | LEXOTERICA: A PHILIPPINE BLAWG
This is not a requirement for the validity of the rules, however; it is only intended to deter an employee from alleging ignorance of a specific company rule before his or her violation. Actual notice is best, but constructive notice includes physical posting in company bulletin boards or other conspicuous places in the workplace and digital distribution by company email or an internal company computer network.
There is no requirement for these rules to be filed with or approved by any government regulatory agency, nor that they be published in the vernacular or other local dialect. There are special statutes governing specific employee discipline issues, with which internal rules must comply. Policies addressing sexual harassment in the workplace and drug testing must comply with statutory minimum standards, and many employers simply adopt the substantive and procedural stipulations in the relevant statute as their internal policies.
There is no legal requirement for employee documentation to be translated into the vernacular language, a local dialect or to a language known to the employee.
However, to avoid any future claims that consent to any agreement between employer and employee was vitiated, it is good practice to translate a document conveying any waiver of employee rights into a language known to the employee. There is jurisprudence that a quitclaim may be declared invalid if its terms were not understood, or misunderstood, by an employee, leading him or her to subsequently disavow it despite his or her receipt of consideration pursuant to the quitclaim.
Private sector employees who occupy both rank-and-file and supervisory positions have the right to form and join labour unions for the purpose of collective bargaining with their employer.
A group of 10 or more local labour unions may constitute a national union or federation, groups of which may be organised further into a trade union centre. Collective bargaining occurs between a single employer and its local labour union. National unions may charter a local labour union. However, when a group of workers choose to remain independent and not affiliate with any national union, they must secure the consent of at least 20 per cent of the workers in the bargaining unit they seek to represent in order to organise the independent local labour union.
A local labour union may legally demand that the employer bargain collectively with it only after it has been legally organised and a registration certificate issued to it by DOLE, and it is chosen in a certification election by a majority of the workers in the bargaining unit it seeks to represent. The term of a certified bargaining agent is five years, generally reckoned from the date that a CBA is concluded with the employer. A certified bargaining agent can legally compel the employer to participate in collective bargaining negotiations, with the end in view of concluding a CBA.
The employer is not forced to agree to the terms demanded by the certified bargaining agent, although the latter can use collective action, such as a strike, to persuade the employer. Once a CBA is concluded between the parties, an employer is legally obliged to enforce its terms for the duration of the agreement.
Under administrative rules published in late by the National Privacy Commission the state regulatory body overseeing compliance with the Data Privacy Actentities with data systems that access or require sensitive personal information of at least 1, individuals, must register with the National Privacy Commission.
The employee whose personal information is collected, processed or stored, is entitled to know: Employees have a general right to know how their personal information will be used and with whom it will be shared. Therefore, they must consent to any cross-border transfers or sharing of personal information with, for instance, a foreign parent company or affiliate of the employer.
Employer-Employee Relationship | Philippine Theo Law Gee
Employee data subjects enjoy the same rights in respect of sensitive personal information, as other personal information. The Data Privacy Act, however, provides for more serious criminal and civil penalties for breaches or violations involving sensitive personal information. Implementing Rules that took effect late in allow the processing of personal data even if the individual objects or withholds consent, provided that the collection or processing is necessary or desirable in the context of the employer—employee relationship between the collector and the data subject Rule VIII, Section 34 b , Implementing Rules of the Data Privacy Act.
In practice, employers conduct these background checks to determine whether the employee has a criminal record and to check their credit history, as well as whether the employee has previously filed a suit against former employers, etc. There is no legal bar to a requirement for an employee to provide his or her own medical history, or subject himself or herself to a medical examination, as a condition for employment, subject to Data Privacy Act restrictions on the storage, transmission and sharing of such sensitive personal information.
However, he failed to show concrete proof that, if indeed he was subjected to abuse, it directly resulted in his depression.
Book III – Conditions of Employment
Philippine Transmarine Carriers, Inc. It is management prerogative to transfer or assign employees from one office or area of operation to another. However, the employer must show that the transfer is not unreasonable, inconvenient or prejudicial to the employee, or that it does not involve a demotion in rank or a diminution of his salaries, privileges and other benefits. The two posts are not of the same weight in terms of duties and responsibilities.
Thus, Del Villar was clearly constructively dismissed.Illegal dismissal of employee
Coca Cola Bottlers Philippines, Inc. Dismissal; closure of business. Petitioner terminated the employment of respondents on the ground of closure or cessation of operation of the establishment which is an authorized cause for termination under Article of the Labor Code.
While it is true that a change of ownership in a business concern is not proscribed by law, the sale or disposition must be motivated by good faith as a condition for exemption from liability. In the instant case, however, there was, in fact, no change of ownership.
Petitioner did not present any documentary evidence to support its claim that it sold the same to ALPS Transportation.