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LAW-AND-PROFESSIONAL-ISSUES-IN-MEDICAL-TECHNOLOGIES.pptx

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LAW-AND-PROFESSIONAL-ISSUES-IN-MEDICAL-TECHNOLOGIES.pptx

  1. 1. LAW AND PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES Transforming Medical Technology Practice Atty. ALBERT G. CONG
  2. 2. SPEAKER’S ABSTRACT Medical and surgical procedures, drugs, equipments and facilities, and the organizational and supportive systems within which care is provided, are among the focused studies in the field of Medical Technologies. It is not just the technologies but the people behind them that diagnose, treat and/or improve a person's health and wellbeing. To date, the Medical Technology Industry is among the world's fastest growing industry sectors. It compasses a wide range of healthcare solutions, and devices for early and rapid diagnosis, minimally invasive treatments, digitized healthcare, and care and delivery solutions. Notwithstanding trends and concepts, with the fast-paced development and acceleration specifically on the mayhem between its professionals, comes a bundle of challenges and in this case, the laws and professional issues in Medical Technologies and how the noble practice should be transformed. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  3. 3. LEARNING OUTCOMES After the topic discussion, the participants will be able to: 1. Be equipped with knowledge on the laws and professional issues in Medical Technologies; 2. Understand the law types and its examples, to wit: a. Constitutional law; b. Civil law; c. Labor aw; and d. Other laws; LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  4. 4. LEARNING OUTCOMES 3. Know the legal difference of wage and salary in relation to their field of interest and other relevant scenarios under the rule of law; and 4. Assimilate the established laws concerning the realms in Medical Technologies and the healthcare in general and identify when and how are they going to use such existing laws that concern to their prerogatives and responsibilities as medical professionals. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  5. 5. LAW. Definition: The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. (Google) LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  6. 6. LAW Constitutional Law Civil Law Labor Law Other Laws TYPES/EXAMPLE S: LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  7. 7. LAW Constitutional Law TYPES/EXAMPLE S: LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  8. 8. Constitutional Law Definition: A body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed. (Google) LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  9. 9. Doctrine of Constitutional Supremacy If a law or contract violates any norm of the constitution, that law or contract, whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes, is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. (Manila Prince Hotel vs. GSIS, 267 SCRA 408 [1997] Bellosillo]) LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  10. 10. Q: What is the Nature of the Philippine State? A: -It is Democratic, as participatory democracy, and contemplates instances where the people would act directly, and not through their representatives (Tolentino vs. COMELEC, G.R. No. 148334, January 21, 2004). -It is Republican, as it is a representative government run by and for the people, its essence in representation and renovation (Cruz, Philippine Political Law, 2002 ed., p.52) LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  11. 11. Section 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. Q: What is Civilian Supremacy? A: Civilian Supremacy, teaches the supremacy of the sovereign Filipino people in line with the principle that “sovereignty resides in the people and all government authority emanates from them”, and this supremacy is at all times, supreme over the military”. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  12. 12. LAW Civil Law TYPES/EXAMPLE S: LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  13. 13. Civil Law Definition: Civil law is a body of rules that defines and protects the private rights of citizens, offers legal remedies that may be sought in a dispute, and covers areas of law such as contracts, torts, property and family law. (Legaldictionary.net) LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  14. 14. LAW on OBLIGATIONS and CONTRACTS LAW on OBLIGATIONS Art. 1156. An obligation is a juridical necessity to give, to do, or not to do. The legal relation between one party and another, the latter is bound to the fulfilment of a prestation (giving, doing or not doing) which the former may demand from him. (Manresa) LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  15. 15. Q: What are the Sources of Obligation? A: Art. 1157. Obligations arise from: (1) Law; (2) Contracts; (3) Quasi-Contracts; (4) Acts or Omissions punished by Law; and (5) Quasi-Delicts LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  16. 16. Art. 1158. Obligations derived from law are not presumed. Only those expressly determined in this Code (Civil Code) or in special laws are demandable, and shall be regulated by the precepts of the law which establishes them; and as to what has not been foreseen, by the provisions of this Book (Civil Code) -Obligations derived from law shall be governed by the law which establishes them. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  17. 17. E.g.: (1) The Obligation of the Husband and the Wife to support each other (Art. 195, Family Code); (2) Obligation of the taxpayer to file Income Tax Returns (Title II, Section 23, NIRC); (3) The obligation of the legitimate ascendants and descendants to support each other (Art. 195, Family Code). LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  18. 18. CONTRACTS Art. 1159. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. Doctrine of Freedom to Contract: The contract entered into between the parties shall have the force of law between them. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  19. 19. Quasi-contrast. Concept: It is a juridical relation which arises from certain lawful, voluntary and unilateral acts, to the end that one may be unjustly enriched or benefited at the expense of another. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  20. 20. Two (2) Principal kinds of Quasi-Contracts: (1)Negotiorum Gestio – voluntary administration of the property, business or affairs of a third person without the consent of authority of its owner. E.g. When, through an accident or other cause, a person is injured or becomes seriously ill, and he is treated or helped while he is not in a condition to give consent to a contract, he shall be liable to pay for the services of the physician or other person aiding him, unless the service has been rendered out of pure generosity. (Art.2167 Civil Code) LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  21. 21. (2) Solutio Indebiti – payment by mistake of an obligation which was not due when paid. E.g. If something received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises. (Art.2154, Civil Code) - D owes C Php10,000.00 payable on November 30, 2019. On November 20, 2019, D thinking that the obligation already due paid C the full amount of the obligation. In this case, C’s obligation is to return the amount paid because the oblgation is not yet due and the oblige (C) has no right to demand it. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  22. 22. DELICTS Art. 1161. Civil obligations arising from criminal offenses shall be governed by the penal laws. Concept: Every person who is criminally liable is also civilly liable. (Art. 100, RPC) Q: What is Included in Civil Liability? A: Restitution: The Restitution of the thing itself must be made whenever possible, with allowance of any deterioration or diminution of value as determined by court. -Restoration of something lost or stolen to its owner. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  23. 23. Reparation of the damage caused: The court shall determine the amount of damage, taking into consideration the price of the thing, whenever possible, and its sentimental value to the injured party, and reparation shall be made. -Payment of the wrong done LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  24. 24. Indemnification for consequential damages: Compensation for harm or loss. E.g. D stole the car of C. While driving the stolen car looking for a buyer, a 6x6 truck sideswiped the car causing damage in the amount of Php50,000.00. In this case, the obligation of D is to restore or return the car to the owner, C, and to pay the damage caused amounting to Php50,000.00. D must also pay the consequential damage suffered by C, and those suffered by his family or by third persons by reason of the crime. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  25. 25. QUASI-DELICTS Art. 1162. Obligations derived from Quasi-Delicts shall be governed by the provisions of Chapter 2, Title XVII of this Book, and by special laws. Concept: Quasi-delict, or tort, or Culpa – Aquiliana, is the wrong committed against a person independent of contract and without criminal intent. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  26. 26. Kinds of Negligence: (a) Culpa Aquiliana or Quasi – Delict – the negligence as a source of obligation. (b) Culpa Contractual – Negligence in the performance of an obligation. Culpa or Negligence distinguished from Dolo or Fraud Culpa, it is not the act or omission which gives rise to the responsibility, but the want of care required from the circumstances. Dolo, the act done or executed by the actor is willful or deliberate with an intention to cause the resulting loss. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  27. 27. LAW on CONTRACTS Definition: Art.1305. A contract is a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service. Contracts distinguished from Obligations Contract is a source of an Obligation as provided in Art.1157, and defined in Art.1305. Obligation is the legal tie or relation itself that exists after the contract was entered into. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  28. 28. Essential Requisites of Contracts: Article 1318. There is no contract unless the following requisites concur: (1) Consent of the contracting parties; (2) Object certain which is the subject matter of the contract; (3) Cause of the obligation which is established. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  29. 29. CONSENT Article 1319. Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. The offer must be certain and the acceptance absolute. A qualified acceptance constitutes a counter-offer. Acceptance made by letter or telegram does not bind the offerer except from the time it came to his knowledge. The contract, in such a case, is presumed to have been entered into in the place where the offer was made. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  30. 30. Concept: Consent is the manifestation of the meeting of the offer and the acceptance upon the thing and the cause of the contract. Requisites of Consent: (a) Given by Two or more parties (b) Parties are Capacitated to contract (c) Consent must Intelligently or Freely given (d) Express manifestation of the will of the contracting parties LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  31. 31. OFFER The proposition or proposal made by one party to another to enter into a contract. It must be CERTAIN, SPECIFIC, DEFINITE so that the liability or right of the Parties can be determined LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  32. 32. Q: In the same case, if after B answered by letter that he is willing to buy if S could deliver 1,500, S answered back that he will deliver 1,500 ballpens, is there an acceptance that would constitute a perfection of the contract? A: Yes. The contract is perfected at the time B received the counter acceptance letter. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  33. 33. Q: S writes B offering to sell a piece of land for Php10,000.00. at the same time S receives a letter from B offering to buy the said land for Php10,000.00. is there a perfected contract? A: None, because neither party knew the offer of the other at the time the letter was written. For the contract to be perfected, it is necessary that one party should accept the offer made by the other party. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  34. 34. OBJECT Article 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  35. 35. All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. Article 1348. Impossible things or services cannot be the object of contracts. Article 1349. The object of every contract must be determinate as to its kind. The fact that the quantity is not determinate shall not be an obstacle to the existence of the contract, provided it is possible to determine the same, without the need of a new contract between the parties. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  36. 36. Objects of Contracts: D PoLi T Co Determinate Possible Licit Transmissible Within the Commerce of men LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  37. 37. CAUSE OF CONTRACTS Concept: The Cause is the “why of the contract”, the essential reason which impels the contracting parties to enter into the contract. Requisites: (a) It must Exist (b) It must be Real (c) Lawful LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  38. 38. Kinds of Contracts according to Cause: (a) Onerous – one of the cause of which, for each contracting party, is the prestation or promise of a thing or service by the other, or the promise that the parties are reciprocally obligated to each other. E.g. Sale, Lease. (b) Remuneratory – one of the cause of which is the service or benefit remunerated. E.g. C rendered service as the defense counsel of D who agreed to pay Php20,000.00 for said service. The object is the Php20,000.00, while the cause is the services to be performed. (c) Gratuitous – the cause of which is the mere liberality of the benefactor or giver. E.g. Pure Donation, Commodatum LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  39. 39. STAGES in the Life of the Contract (a) Preparation or conception: Preparatory steps taken by the parties leading to the perfection of the contract, otherwise known as the Bargaining Point. (b) Perfection or Birth: meeting of the minds regarding the subject matter and the cause of the contract. Perfection of Contracts: Expedition Theory: Contract is perfected from the moment the acceptance is declared or made even if not made known to the offeror. Cognition Theory: Contract is perfected from the moment the acceptance comes to the knowledge of the offeror. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  40. 40. (c) Consummation or Death or Termination: the parties have performed their respective obligations and the contract is put to an end. Form of Contracts Q: May a contract be entered into any form? A: Yes, contracts shall be obligatory in whatever form they may have been entered into, provided all the essential requisites for their validity are present. However, when the law requires that a contract be in some form in order that it may be valid or enforceable, or that a contract be proven in a certain way, that requirement is absolute and indispensable. (Art. 1356, NCC) LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  41. 41. LAW Labor Law TYPES/EXAMPLE S: LAW & PROFESSIONAL ISSUES IN NURSING LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  42. 42. LABOR LAW Definition: The Labor Code of the Philippines stands as the law governing employment practices and labor relations in the Philippines. Parties: Employer: Any person acting in the interest of an employer, directly or indirectly. Employee: Any person in the employ of the employer. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  43. 43. Constitutional Provisions Art.II Declaration of Principles and State Policies Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  44. 44. Section 10. The State shall promote social justice in all phases of national development. -Policy of Social Justice – The Law bends over backward to accommodate the interests of the working class on the humane justification that those with less privilege in life should have more in law. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  45. 45. Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. -Protection to Labor Clause – The basis of: (a) Art.1702 New Civil Code – All labor legislation and labor contracts should be construed in favor of the safety and decent living for the laborer; (b) Art. 4 Labor Code – All doubts should be resolved in favor of labor. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  46. 46. Thus, when conflicting interest of labor and capital are to be weighed on the scales of social justice, the heavier influence of the labor force should be counter-balanced by sympathy and compassion the law must accord the underprivileged worker. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  47. 47. EMPLOYER-EMPLOYEE RELATIONSHIP FOUR-FOLD TEST (a) Selection and Engagement of Employee (b) Payment of Wages or Salaries (c) Exercise of the Power of Dismissal (d) Exercise of the Power to control the employee’s conduct LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  48. 48. Kinds of Employment : (a) Probationary: One who, for a given period of time, is on observation, evaluation and trial by an employer during which the employer determines whether or not he is qualified for permanent employment. Period: Should not exceed 6 months from the date the employee started working. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  49. 49.  Employer and employe agree on a shorter or longer period  Nature of the work to be performed by the employee requires a longer period  When a longer period is required and established by company policy LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  50. 50. (b) Regular: 2 types under Art 295 (Art. 280) of the Labor Code:  Those engaged to perform activities which are usually necessary or desirable in the usaul business or trade of the employer; and  Thos who have rendered at least one (1) year of service, whether such service is continuos or broken, with respect to the activity within which they are employed. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  51. 51. Ways of Attaining Regular Employment:  By Nature of Work: The Employee has been engaged perform activities which are usually necessary or desirable in the usaul business or trade of the employer;  By period of Service: The employee has rendered at least one (1) year of service, whether such service is continuos or broken, with respect to the activity within which they are employed.  By probationary period: Employment is considered regular when the employee is allowed to work after a probationary period. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  52. 52. (c) Project: Are those hired:  For a specific project or undertaking; and  The completion or termination of such project has been determined at the time of their engagement. Categories of Project Employees:  A particular job or undertaking that is within the regular or usual business of the employer company, but which is distinct and separate, and identifiable as such from the other undertakings of the company; or  A particular job or undertaking that is not within the regular course of business of the corporation. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  53. 53. Litmus Test of Project Employment: The litmus test of project employment, as distinguished from regular employment, is whether or not the project employees were assigned to carry out specific project or undertaking, the duration and scope of which were specified at the timne the employees were engaged for that project. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  54. 54. (d) Seasonal: is one whose work or service to be performed is seasonal in nature and the employment is for the duration of the season. -Seasonal employees may attain regulairty in their employment as such. Once they attained such regularity, they are properly called “Regular Seasonal Employees.” Requisites for Regularity of Employment of Seasonal Employees: (1) Seasonal Employees should perform work or services that are seasonal in nature; and (2) They must have also been employed for more than one (1) season. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  55. 55. (e) Casual: An employee is engaged to perform a job, work or service which is merely incidental to the business of the employer, and such job, work or service is for a definite period made known to the employee at the time of the engagement. (f) Fixed-Term: (1) Fixed period of employment was knowingly and voluntarily agreed upon by the parties, without any force, duress or improper pressure ebing brought to bear upon the employee and absent any other circumstances vitiating his consent; or (2)It satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former on the latter. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  56. 56. Fixed Term Employment of OFWs  OFWs can never acquire regular employment  Employment contracts of OFWs for indefinite period are not valid  OFWs do not become regular employees by reason of nature of their work  Series of Rehiring of OFWs cannot ripen into regular employment LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  57. 57. Labor Laws. General rule: Shall apply to employees in all establishments and undertakings whether for profit or not. (Art. 82, LC) Exceptions (NOT Covered): (1)Government employees (Art. 82; Art. 76) (2) Managerial Employees including members of the managerial staff (Art. 82) (3)Field Personnel (Art. 82) (4)Members of the family of the employer who are dependent on him for support (Art. 82); (5)Domestic helpers and persons in personal service of another (Art. 141, RA 10361) (6)Workers who are paid by result as determined by DOLE regulation (Art. 82) LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  58. 58. HOURS OF WORK NORMAL HOURS OF WORK General Rule: 8-Hour Labor Law The normal hours of work of any employee shall not exceed eight (8) hours a day. [Art. 83, LC] Note: Article 83 of the Labor Code only set a maximum of number of hours as "normal hours of work" but did not prohibit work of less than eight hours [Legend Hotel v. Realuyo (2012)]eption the 8-Hour Law: LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  59. 59. Work Hours of Health Personnel Health personnel in: (1) Cities and municipalities with a population of at least one million (1,000,000) OR (2) Hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  60. 60. "Health Personnel" shall include (1) resident physicians, (2) nurses, (3) nutritionists, (4) dietitians, (5) pharmacists, (6) social workers, (7) laboratory technicians, (8) paramedical technicians, (9) psychologists, (10)midwives, (11)Attendants, and (12)all other hospital or clinic personnel. [Art. 83, LC] (13)Medical secretaries are also considered clinic personnel. [Azucena] LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  61. 61. Compensable Hours of Work (Art. 84, LC) Hours worked shall include: (1) All time during which an employee is required to be on duty or to be at a prescribed workplace; AND (2) All time during which an employee is suffered or permitted to work. General principles in determining if time is considered as hours worked [Book III, Rule 1, Sec. 4, IRR] LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  62. 62. (1) All hours are hours worked which the employee is required to give his employer, regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion. (2) An employee need not leave the premises of the work place in order that his rest period shall not be counted, it being enough that he stops working, may rest completely and may leave his work place to go elsewhere, whether within or outside the premises of his work place. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  63. 63. (3) If the work performed was necessary, or it benefited the employer, or the employee could not abandon his work at the end of his normal working hours because he had no replacement, all time spent for such work shall be considered as hours worked, if the work was with the knowledge of his employer or immediate supervisor. (4) The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either: (a) If the imminence of the resumption of work requires the employee’s presence at the place of work, or (b) If the interval is too brief to be utilized effectively and gainfully in the employee’s own interest. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  64. 64. On Call An employee who is: (1) Required to remain on call in the employer’s premises or so close thereto (2) That he cannot use the time effectively and gainfully for his own purpose shall be considered as working while on call. Inactive due to work interruptions The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either: (1) If the imminence of the resumption of work requires the employee's presence at the place of work OR (2) If the interval is too brief to be utilized effectively and gainfully in the employee's own interest. [Book III, Rule 1, Sec. 4(d), IRR] LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  65. 65. Work interruption due to brownouts Brownouts of short duration, but not exceeding 20 minutes, shall be treated as hours worked, whether used productively by the employees or not. If they last more than 20 minutes, the time may not be treated as hours worked if the employees can leave their workplace or go elsewhere whether within or without the work premises; or the employees can use the time effectively for their own interest. In this case, the employer may extend the working hours beyond the regular schedule on that day to compensate for the loss of productive man hours without being liable for overtime pay. [Policy Instruction No. 36, May 22, 1978] LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  66. 66. Idle Time The idle time that an employee may spend for resting and dining which he may leave the spot or place of work though not the premises of his employer, is not counted as working time only where the work is broken or is not continuous. [National Development Co. v. CIR (1962)] A laborer need not leave the premises of the factory, shop or boat in order that his period of rest shall not be counted, it being enough that he "cease to work", may rest completely and leave or may leave at his will the spot where he actually stays while working, to go somewhere else, whether within or outside the premises of said factory, shop or boat. If these requisites are complied with, the period of such rest shall not be counted. [Luzon Stevedoring Co. v. Luzon Marine Department Union (1957)] LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  67. 67. Proof of Hours worked Entitlement to overtime pay must first be established by proof that said overtime work was actually performed, before an employee may avail of said benefit. [Lagatic v. NLRC (1998)] Burden of Proof: When an employer alleges that his employee works less than the normal hours of employment as provided for in the law, he bears the burden of proving his allegation with clear and satisfactory evidence. [Prangan v. NLRC, et. al., G.R. No. 126529, April 15 (1998)]. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  68. 68. FLEXIBLE WORK ARRANGEMENTS Broken-time Schedule The works schedule is not continuous but the work hours within the day or week remain. Flexi-holidays The employees agree to avail the holidays at some other days provided there is no diminution of existing benefits as a result of such arrangement. Compressed Work Week (CWW) [DOLE Advisory No. 02, Series of 2004] Under the CWW scheme, the normal workday goes beyond eight hours without the corresponding overtime premium. The total hours of work, however, shall not exceed 12 hours a day or 48 hours a week, or the employer is obliged to pay the worker the overtime premium in excess of said work hours. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  69. 69. MEAL BREAK General Rule: Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals (Art. 85, LC) Exception: Employees may be given a meal period of not less than twenty (20) minutes provided that such shorter meal period is credited as compensable hours worked of the employee: (1) Where the work is non-manual work in nature or does not involve strenuous physical exertion; (2) Where the establishment regularly operates not less than sixteen (16) hours a day; (3) In case of actual or impending emergencies or there is urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer; and (4) Where the work is necessary to prevent serious loss of perishable goods [Book 3, Rule 1, Sec. 7 par 1, IRR] LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  70. 70. WAGES Definition (a) It is the remuneration or earnings, however designated, capable of being expressed in terms of money, (b) Whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, (c) Which is payable by an employer to an employee (d) Under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  71. 71. WAGE SALARY Paid for skilled or unskilled manual labor Paid to white collar workers and denote a higher grade of employment Not subject to execution, garnishment or attachment except for debts related to necessities [Art. 1708] Not exempt from execution, garnishment or attachment [Gaa vs. CA, 1985] WAGE VS. SALARY LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  72. 72. MINIMUM WAGE Definition Statutory minimum wage is the lowest wage rate fixed by law that an ER can pay his workers. [IRR, RA 6727, (o)] General Rule: The wage increases prescribed under Wage Orders apply to all private sector workers and employees receiving the daily minimum wage rates or those receiving up to a certain daily wage ceiling, where applicable, regardless of their position, designation, or status, and irrespective of the method by which their wages are paid. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  73. 73. Exceptions: (1) Domestic Helpers/kasambahay are covered by RA 10361 (2) Workers of registered barangay micro business enterprise with Certificates of Authority issued by the Office of the Municipal or City Treasurer. [RA 9178] (3) Learners [RA 602] (4) Apprentices [RA 602] (5) Handicapped Worker [RA 602] LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  74. 74. DEDUCTIONS FROM WAGES General Rule: No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees. (Art. 113, LC) Exceptions: (1) In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance; (2) For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  75. 75. (3) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment (Art. 113, LC), such as: (a) Employee debt to employer is due and demandable (Art. 1706, CC); (b) Attachment or execution in cases of debts incurred for necessities: food, shelter, clothing, medical attendance (Art. 1708, CC); (c) Withholding tax; (d) Deductions of a legally established cooperative; (e) Payment to 3rd parties upon written authority by employee; (f) Deductions for loss or damage; (g) SSS, Medicare, Pag-IBIG premiums; (h) Deduction for value meals and other facilities. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  76. 76. With Employee’s consent in Writing Without Employee’s consent (1) SSS Payments (2) PHILHEALTH payments (3) Contributions to PAG-IBIG Fund (4) Value of meals and other facilities (5) Payments to third persons with employee’s consent (6) Deduction of absences (7) Union dues, where check-off is not provided in the CBA. (1) Worker’s insurance acquired by the employer (2) Union dues, where the right to check-off is recognized by the employer (provided in the CBA) (3) Debts of the employee to the employer that have become due and demandable LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  77. 77. NON-DIMINUTION OF BENEFITS General Rule: There is a prohibition against elimination or diminution of benefits [Art. 100] No wage order issued by any regional board shall provide for wage rates lower than the statutory minimum wage rates prescribed by Congress. [Art. 127, as amended by Republic Act No. 6727, June 9, 1989] LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  78. 78. Requisites If the following are met, then the employer cannot remove or reduce benefits: (1) Ripened company policy: Benefit is founded on a policy which has ripened into a practice over a long period [Prubankers Assn. vs. Prudential Bank and Co., 1999] (2) Practice is consistent and deliberate and (3) Not due to error in the construction or application of a doubtful or difficult question of law. [Globe Mackay Cable vs. NLRC, 1988] (4) The diminution or discontinuance is done unilaterally by the employer. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  79. 79. OVERTIME WORK, OVERTIME PAY Overtime compensation is additional pay for service or work rendered or performed in excess of eight hours a day by employees or laborers covered by the Eight-hour Labor Law. [National Shipyard and Steel Corp. v. CIR (1961)] Rationale: There can be no other reason than that he is made to work longer than what is commensurate with his agreed compensation for the statutorily fixed or voluntary agreed hours of labor he is supposed to do. [PNB v. PEMA (1982)] Overtime on ordinary working day Art. 87, LC. Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twenty five percent (25%) thereof. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  80. 80. Overtime work on holiday or rest day Art. 87, LC. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof. Computation of additional compensation Art. 90, LC. For purposes of computing overtime and other additional remuneration as required by this Chapter the "regular wage" of an employee shall include the cash wage only without deduction on account of facilities provided by the employer. Base of Computation: Regular wage – means regular base pay; it excludes money received in different concepts such as Christmas bonus and other fringe benefits. [Bisig ng Manggagawa ng Philippine Refining Co. v. Philippine Refining Co (1981)] BUT when the overtime work was performed on the employee’s rest day or on special days or regular holidays (Art. 93 and 94), the premium pay, must be included in the computation of the overtime pay. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  81. 81. Synthesis of Rules (1) An employer cannot compel an employee to work overtime Exception: Emergency overtime work as provided for in Art. 89 (2) Additional compensation is demandable only if the employer had knowledge and consented to the overtime work rendered by the employee. Exception: Express approval by a superior NOT a requisite to make overtime compensable: (a) If the work performed is necessary, or that it benefited the company; or (b) That the employee could not abandon his work at the end of his eight- hour work because there was no substitute ready to take his place. [Manila Railroad Co. v. CIR (1952)] Note: However, the Court has also ruled that a claim for overtime pay is NOT justified in the absence of a written authority to render overtime after office hours during Sundays and holidays. [Global Incorporated v. Atienza (1986)] LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  82. 82. (3) Compensation for work rendered in excess of the eight (8) normal working hours in a day. (a) For ordinary days, additional 25% of the basic hourly rate. (b) For rest day/special day/holiday, additional 30% of the basic hourly rate. (4) A given day is considered an ordinary day, unless it is a rest day. (5) Undertime does NOT offset overtime Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required in this Chapter. [Art. 88, LC] LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  83. 83. Ordinary Day Rest Day/Holiday Overtime Pay (25%) additional 25% of the basic hourly rate. (30%) additional 30% of the basic hourly rate. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  84. 84. No Waiver of Overtime Pay The right to overtime pay cannot be waived. Exception: When the waiver of overtime pay is in consideration of benefits and privileges which may be more than what will accrue to them in overtime pay, the waiver MAY be permitted. [Meralco Workers Union v. MERALCO (1959)] NIGHT WORK, NIGHT SHIFT DIFFERENTIAL Night worker Any employed person whose work requires performance of a substantial number of hours of night work which exceed a specified limit. Night shift differential [Art. 86, LC] The additional compensation of 10% of an employee’s regular wage for each hour of work performed between 10pm and 6am. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  85. 85. HOLIDAY PAY/PREMIUM PAY Holiday pay is a one-day pay given by law to an employee even if he does not work on a regular holiday. This gift of a day’s pay is limited to each of the 12 regular holidays. Premium Pay Premium pay refers to the additional compensation for work performed within 8 hours on non-work days, such as rest days and special days. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  86. 86. Work on any regular holiday, not exceeding 8 hour Computation Work on any regular holiday 200% of regular daily wage Work on any regular holiday which falls on the scheduled rest day, not exceeding 8 hours 200% of regular daily wage + 30% of such amount Work on special holiday not exceeding 8 hours Regular daily wage + 30% thereof Work on special holiday which falls on the scheduled rest day Regular daily wage + 50% of such amount Work on any regular holiday, exceeding 8 hours Computation Work on any regular holiday, if it exceeds 8 hours/overtime 200% of regular daily wage (for the 1st 8 hours) + 30% of hourly rate on said day Work on any regular holiday which falls on the scheduled rest day, exceeding 8 hours 200% of regular daily wage plus 30% of such amount + 30% of hourly rate on said day. Work on special holiday which falls on the scheduled rest day, exceeding Regular daily wage + 50% of such amount+ 30% of hourly rate on said day. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  87. 87. LEAVE No. Of days Applicable to Maternity (R.A. 11210) 105 days paid leave for live childbirth regardless of the mode of delivery -Women -Regardless of Marital status -Government/Private - For Private Sector: Three (3) monthly contributions in the twelve- month period immediately preceding the semester of childbirth or miscarriage Additional 15 days paid leave for solo parents Option to extend up to 30 days without pay leave for live childbirth regardless of the mode of delivery 60 days paid leave for miscarriage or termination of brith LEAVES - a Period of Time that one must be away from one’s primary job while maintaining the status of an employee. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  88. 88. LEAVE No. Of days Applicable to Victims of Violence Against Women (R.A. 9262) 10 days paid leave -Women -Victims of VAWC -Regardless of Marital status -Government/Private Special Leave Benefits for Women (R.A. 9710) 2mos. Paid leave -Women with Gynecological Disorders -Regardless of Marital status -Government/Private -Rendered continuous aggregate employment service of at least six (6) months for the last 12 months. LEAVES - a Period of Time that one must be away from one’s primary job while maintaining the status of an employee. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  89. 89. LEAVES - a Period of Time that one must be away from one’s primary job while maintaining the status of an employee. LEAVE No. Of days Applicable to Alternate Caregiver/Partn er Leave (R.A. 11210) 7 days paid leave taken from the Maternity leave of the Woman -Any person or any partner of the woman availing of the Maternity leave -Government /Private SOLO Parent (R.A. 8972) 7 days paid leave Any person -Government/Private -Has rendered service at least one year Paternity (R.A. 8187) 7 days paid leave Husbands to First 4 deliveries of the Legitimate Spouse -Government/Private Service Incentive (Art.95 Labor Code) 5 days paid leave -Any Person -Private -Has rendered service at least one year LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  90. 90. Resignation: Art. 291, LC: Termination by Employee. (a) An employee may terminate without just cause the employer-employee relationship by serving a written notice on the employer at least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  91. 91. (b) An employee may put an end to the relationship without serving any notice on the employer for any of the following requirements: 1. Serious insult by the employer or his representative on the honor and person of the employee; 2. Inhuman and unbearable treatment accorded the employee by the employer or his representative; 3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and 4. Other causes analogous to any of the foregoing. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  92. 92. TERMINATION OF EMPLOYMENT BY THE EMPLOYEE With Notice Without Notice at least one (1) month in advance Anytime Any Reason 1. Serious insult by the employer 2. Inhuman and unbearable treatment 3. Commission of a crime 4. Other causes analogous to any of the foregoing. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  93. 93. JUST CAUSES AUTHORIZED CAUSES Always based on the acts attributable to the employee’s own fault or negligence lawful grounds for termination which in general do not arise from fault or negligence of the employee JUST CAUSE VS. AUTHORIZED CAUSE LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  94. 94. JUST CAUSE Art. 288, LC: Termination by Employer. 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 LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  95. 95. (e) Other causes ANALOGOUS to the foregoing. Other Analogous Causes (1) Abandonment (2) Courtesy Resignation (3) Change of Ownership (4) Habitual Absenteeism/Tardiness (5) Past Offenses (6) Habitual Infractions (7) Immorality (8) Conviction/Commission of a Crime LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  96. 96. AUTHORIZED CAUSE (1) Installation of labor saving device (2) Retrenchment to prevent losses (3) Redundancy (4) Closure of Business [Art. 289, LC] (5) Other: (a) Disease Installation of Labor-Saving Device This refers to the installation of machinery to effect economy and efficiency in the employer’s method of production (Edge Apparel, Inc. v. NLRC, G.R. No. 121314, Feb. 12, 1998) LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  97. 97. Retrenchment to prevent losses Is an economic ground to reduce the number of employees. Reduction of personnel for the purpose of cutting down on costs of operations in terms of salaries and wages. Redundancy Exist where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. Closure of Business The closure of business is a ground for the termination of the services of an employee unless the closing is for the purpose of circumventing pertinent provisions of labor code. Disease An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as health of his co-employees. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  98. 98. Retrenchment Redundancy Closure Reduction of personnel usually due to poor financial returns so as to cut down on costs of operations in terms of salaries and wages The service of an Employee is in excess of what is required by an enterprise The reversal of the fortune of the employer whereby there is a complete cessation of business operations and/or actual locking-up of the doors of the establishment, usually due to financial losses Resorted to primarily to avoid or minimize business losses To save production costs Helps further financial drain upon the Employer Employee is entitled to separation pay of 1 month pay or 1/2 month pay per year of service, whichever is higher Employee is entitled to separation pay of 1 month pay or 1/2 month pay per year of service, whichever is higher In case of closure of business not due to serious business losses, the employer pays the employees terminated separation pay of 1 month pay or 1/2 month pay per year of service, whichever is higher LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  99. 99. Requisites for Valid Dismissal (1) Substantive due process: The dismissal must be for any of the causes provided for in Article 288 – 290 of the Labor Code; and (2) Procedural due process: The employee must be afforded an opportunity to be heard and defend himself. [Fujitsu Computer Products Corporation of the Phil. v. Court of Appeals, G.R. No. 158232, March 31, 2005] TWIN-NOTICE REQUIREMENT The employer has the burden of proving that a dismissed worker has been served two notices: (1) The first to inform the employee of the particular acts or omissions for which the employer seeks his dismissal, and (2) The second to inform the employee of his employer's decision to terminate him. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  100. 100. Notice specifying the grounds for which dismissal is sought Hearing or opportunity to be heard Notice of the decision to dismiss PROCEDURE TO BE OBSERVED IN TERMINATION CASES JUST CAUSE LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  101. 101. Situation Validity of Dismissal Liability of ER Just or Authorized Cause + Due Process Valid No liability. Separation pay only in authorized cause No Just or Authorized Cause + Due Process Invalid Reinstatement or separation pay. If reinstatement not possible, + full backwages No Just or Authorized Cause + No Due Process Invalid Reinstatement or separation pay. If reinstatement not possible, + full backwages Just or Authorized Cause + No Due Process Valid Liable for damages due to procedural infirmity. Separation pay if for authorized cause CONSEQUENCES FOR NON-COMPLIANCE OF PROCEDURAL DUE PROCESS
  102. 102. ILLEGAL RECRUITMENT (MIGRANT WORKERS ACT R.A. 10022) “Recruitment and placement" refers to any act of (C-E-C-T-U-H) (a) Canvassing, (b) Enlisting, (c) Contracting, (d) Transporting, (e) Utilizing, or (f) Hiring procuring workers, And also includes (a) Referrals, (b) Contract services, (c) Promising, or (d) Advertising for employment, locally or abroad, whether for profit or not LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  103. 103. Q: What is Simlegal Recruitment? A: Simple Illegal Recruitment is committed where a person: (a) Undertakes any recruitment activity or any prohibited practice enumerated in Art. 34 and Art. 38 of the Labor Code; and (b) Does not have any License or Authority to lawfully engage in the recruitment and placement of workers. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  104. 104. Prohibited Acts "(a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance; Xxx xxxxx "(d) To include or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment; "(e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization; LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  105. 105. "(i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment; XxxXX "(k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations; "(l) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment; LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  106. 106. "(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and "(n) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  107. 107. "(1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan; "(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons; "(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own; "(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner; "(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except for recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings; LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  108. 108. License Recruitment/Pla cement Prohibited Acts Legal/Illegal Y Y N Legal Y Y Y Illegal Y N N - N Y N Illegal N Y Y Illegal N N N - LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  109. 109. ILLEGAL RECRUITMENT IN LARGE SCALE Illegal recruitment by a syndicate (1) The offender undertakes either any activity within the meaning of "recruitment and placement" defined under Article 13(b), or any of the prohibited practices enumerated under Art. 34 of the Labor Code; (2) He has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; AND (3) The illegal recruitment is committed by a group of three (3) or more persons conspiring or confederating with one another. [People v. Gallo (2010)] LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  110. 110. Illegal recruitment in large scale The acts committed by the accused constituted illegal recruitment in large scale, whose essential elements are the following: (1) The accused engages in acts of recruitment and placement of workers defined under Article 13(b) of the Labor Code or in any prohibited activities under Article 43 of the Labor Code; (2) The accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of license or an authority to recruit and deploy workers, either locally or overseas; and (3) The accused commits the unlawful acts against three or more persons individually or as a group. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  111. 111. Illegal Recruitment Recruitment/ Placement License Commission BY A SYNDICATE Y N Committed by 3 or more persons IN LARGE SCALE Y N Committed against 3 or more persons LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  112. 112. ILLEGAL RECRUITMENT INVOLVING MIGRANT WORKERS [Sec. 7, RA 8042 as amended by RA 10022] Common Rules on Liability: (1) Employees of a company corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it is shown that he actively and consciously participated in illegal recruitment. (2) Local Employment Agency is solidarily liable with foreign principal. Severance of relations between local agent and foreign principal does not affect liability of local recruiter. Private employment agencies are held jointly and severally liable with the foreign based employer for any violation of the recruitment agreement or contract of employment. This joint and solidary liability imposed by law against recruitment agencies and foreign employers is meant to assure the aggrieved worker of immediate and sufficient payment of what is due him. [Becmen Service Exporter and Promotion, Inc. v. Spouses Cuaresma, G.R. 182978-79, April 7, 2009] LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  113. 113. (3) If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages. [Becmen Service Exporter and Promotion, Inc. v. Spouses Cuaresma, G.R. 182978-79, April 7, 2009] (4) Foreign employer shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract, including but not limited to payment of wages, death and disability compensation and repatriation LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  114. 114. NEGLIGENCE Q: What is Negligence? A: Negligence has been defined as the failure to observe for the protection of the interests of another person or the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury [PNR et al. vs. CA, GR No. 157658, October 15, 2007] Standard of Care: Q: What is the standard of care that should be observed? A: Diligence of a Good Father of a Family. It means that in rendering our obligations to other persons, we should provide the care and caution that we would have otherwise done in the exercise of handling the affairs of our own family. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  115. 115. Malpractice: Q: What constitutes Medical Malpractice? A: The elements of medical negligence are: (1) duty; (2) breach; (3) injury; and (4) proximate causation. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  116. 116. CASUMPANG, et al, vs. CORTEJO G.R. No. 171127, March 11, 2015 Once a physician-patient relationship is established, the LEGAL DUTY of care follows. The doctor accordingly becomes duty-bound to use at least the same standard of care that a reasonably competent doctor would use to treat a medical condition under similar circumstances. BREACH OF DUTY occurs when the doctor fails to comply with, or improperly performs his duties under professional standards. This determination is both factual and legal, and is specific to each individual case. If the patient, as a result of the breach of duty, is INJURED in body or in health, actionable malpractice is committed, entitling the patient to damages. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  117. 117. To successfully claim damages, the patient must lastly prove the causal relation between the negligence and the injury. This connection must be direct, natural, and should be unbroken by any intervening efficient causes. In other words, the negligence must be the PROXIMATE CAUSE of the injury. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  118. 118. Q: Who are liable for Negligence or Medical Malpractice? A: Actor: the one who committed the negligence. Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict Doctors/Supervisors: Respondeat Superior LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  119. 119. Hospital: Art. 2180. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. doctrine of apparent authority. a hospital can be held vicariously liable for the negligent acts of a physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless the patient knows, or should have known, that the physician is an independent contractor. The elements of the action have been set out as follows: LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  120. 120. For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. (Emphasis supplied) [CASUMPANG, et al, vs. CORTEJO G.R. No. 171127, March 11, 2015] LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  121. 121. HOSPITAL WORKER SHAMING Q: What is Hospital Worker Shaming? A: Incivility and bullying in the workplace which are intimidating forces that result in shame responses and threaten the well-being of hospital workers. (Google) Q: What are the liabilities of a person guilty of hospital worker shaming? A: The person can be criminally and civilly liable. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  122. 122. Q: What are the Criminal Liabilities guilty of Hospital Worker Shaming? A: (1) Art. 355. Libel by means of writings or similar means (2) Cyberlibel under Sec. 4, Par. C, Subsection 4 of R.A. 10175 Anti – Cyber Crime Law (3) Art. 358. Slander (4) Art. 359. Slander by deed LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  123. 123. Q: What is Libel? A: A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. [Art. 353, RPC] Q: How is it committed? A: Committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  124. 124. Q: What is Slander? A: Spoken Oral Defamatory statement. Q: What is Slander by Deed? A: It is libel committed by actions rather than words. Q: How is Slander by Deed committed? A: A crime against honor committed by performing any act, which casts dishonor, discredit, or contempt upon another person. LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  125. 125. Q: What are Damages? A: Damages are the pecuniary compensation, recompense, or satisfaction for an injury sustained, or as otherwise expressed, the consequences which the law imposes for breach or some duty or the violation of some right (People vs. Ballesteros, G.R. No. 120921, January 29, 1998) LAW & PROFESSIONAL ISSUES IN MEDICAL TECHNOLOGIES by Atty. Albert G. Cong
  126. 126. DAMAGES ACTUAL/COM PENSATORY MORAL NOMINAL TEMPERATE EXEMPLARY LIQUIDATED “The words ‘actual damages’ shall be construed to include all damages that the plaintiff may show he has suffered in respect to his property, business, trade, profession, or occupation, and no other damages whatever.” (Gen. Stat. Minn., 1894, sec. 5418). Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury The purpose of nominal damages is to vindicate or recognize a right that has been violated, in order to preclude further contest thereof; and not for the purpose of indemnifying the plaintiff for any loss suffered by him. Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be provided with certainty. (Art.2224, NCC) Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. Those agreed by the parties to a contract
  127. 127. THANK YOU!

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