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The Essentials of HR and Labor Law. July 24, 2014. Philippines.

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The Essentials of HR and Labor Law. Seminar. Slides. Presentation. Prepared and delivered by Atty. Apollo X.C.S. Sangalang. July 24, 2014. AIM Conference Center. Makati City. Metro Manila. Philippines.

Published in: Law

The Essentials of HR and Labor Law. July 24, 2014. Philippines.

  1. 1. Atty. Apollo X.C.S. Sangalang PoL Business Lawyer & Legal Coach
  2. 2. Dionarto Q. Noblejas -versus- Italian Maritime Academy Phils., Inc., Capt. Nicolo S. Terrei, Raceli B. Fernandez, and Ma. Teresa R. Mendoza G.R. No. 207888 June 9, 2014 Supreme Court of the Philippines
  3. 3. Philippine Spring Water Resources Inc., and Danilo Y. Lua -versus- Court of Appeals and Juvenstein B. Mahilum G.R. No. 205278 June 11, 2014 Supreme Court of the Philippines
  4. 4. Takata (Philippines) Corporation -versus- Bureau of Labor Relations and Samahang Lakas Manggagawa ng Takata (SALAMAT) G.R. No. 196276 June 4, 2014 Supreme Court of the Philippines
  5. 5. Disclaimers • No lawyer-client relationship. • Consult your own legal counsel. • Legal opinions differ. • Respect the sub judice rule. • Avoid conflict of interest.
  6. 6. This seminar is INTERACTIVE
  7. 7. LABOR LAW MADE EASY 1.  Learn something new DAILY about Labor Law. 2.  Links to RESOURCES, SITES, and EVENTS. 3.  Quick consultation for FREE (thru private message).
  8. 8. LABOR LAW MADE EASY (a Facebook page) https://www.facebook.com/legalcoach LIKE COMMENT SHARE TAG
  9. 9. Evolution of Management Prerogative Slavery Serfdom Employment
  10. 10. Evolution of Ownership Slavery Labor Serfdom Land Employment Capital
  11. 11. Law on Ownership • “The owner has the right to enjoy and dispose of a thing, without other limitations other than those established by law.” • (Art. 428, Civil Code).
  12. 12. Evolution of Labor Law Slavery Tribal Serfdom Feudal Employment Contractual
  13. 13. Law on Contracts “The contracting parties may establish such stipulations, clauses, terms and conditions as may be deemed convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.” (Art. 1306, Civil Code)
  14. 14. Did you know that…?
  15. 15. Evolution of HR Slavery Masters Serfdom Lords Employment Managers
  16. 16. Employer Power Equation Ownership Contracts Power
  17. 17. Employer Power! “The State recognizes the indispensable role of the private sector, encourages private enterprises, and provides incentives to needed investments.” (Sec. 20, Art. II, Constitution) “The State…x x x… recognizing the right of enterprises (1) to reasonable returns on investments, and (2) to expansion and growth.” (Sec. 3, Art. XIII, Constitution)
  18. 18. Management Prerogative 1. Right to hire; 2. Right to fire; 3. Right to fix compensation & benefits; and 4. Right to control.
  19. 19. What’s the problem?
  20. 20. What’s the problem?
  21. 21. Limitation No. 1 • Article 291 paragraph 2, Labor Code • (Formerly Article 277)
  22. 22. Limitation No. 2 • Article 4, Labor Code
  23. 23. Full Protection Equation Burden of Proof All Doubts E.A.P.G.
  24. 24. Did you know that…?
  25. 25. Pre-Employment Employment Post Employment
  26. 26. Courtship + Engagement Marriage Separation + Annulment
  27. 27. Placement Selection Recruitment
  28. 28. Marriage Engagement Courtship
  29. 29. Job Analysis Job Description Advertise Vacancies Receive Job Applications Job Interview Background Checks Testing Short- Listing Job Offer & Acceptance
  30. 30. Happy Ending • Golden Anniversary Tragic Ending • Separation • Law suits MARRIAGE
  31. 31. Happy Ending • Retirement • Resignation Tragic Ending • Termination • Labor case • Other law suits EMPLOYMENT
  32. 32. It all starts with a…?
  33. 33. Did you know that…?
  34. 34. Employee • Labor Law • Control Independent Contractor • Civil Law • No Control Hiring Process
  35. 35. Labor Law Control
  36. 36. Labor Law 1.  Full protection 2.  Living wage 3.  Humane conditions of work 4.  Security of tenure 5.  Participation in policy and decision-making 6.  Just share in the fruits of production 1.  Self-organization and collective bargaining; 2.  Freedom of expression; and 3.  Strike and other peaceful concerted activities
  37. 37. Monetary Benefits Minimum Wage Holiday Pay Premium Pay Overtime Pay Night Shift Differential Service Charges Service Incentive Leave Maternity Leave Paternity Leave Solo Parents Leave VAWC Leave Special Leave for Women 13th Month Pay Separation Pay Retirement Pay Compensation Benefit* (ECC) PhilHEALTH Benefit* Social Security Benefit* Pag-IBIG Benefit*
  38. 38. 2014 Handbook
  39. 39. Non-Diminution of Benefits
  40. 40. What’s Control? End Means Control
  41. 41. Test of Employment Hire Fire Pay* Control 4-Fold Test
  42. 42. Control Test • The power to determine the end results and the means of doing the work is CONTROL. • Only an employer has the power of control over his employees. • The power of control need not be actually exercised.
  43. 43. Non-employment Options Independent Contractors Job Contractors Consultants Freelancers Agents Industrial Partners Corporate Officers Cooperative Members Volunteers Interns
  44. 44. Did you know that…?
  45. 45. Job Analysis Job Description Advertise Vacancies Receive Job Applications Job Interview Background Checks Testing Short- Listing Job Offer & Acceptance
  46. 46. Types of Employment Private Sector Government Regular (Nature) Casual Regular (Term) Non-Regular Rank-and-file Manager & Supervisor Time-based Results-based
  47. 47. Private Sector Government Labor Code and other labor laws Civil Service Law Department of Labor and Employment Civil Service Commission CBA + Strike CNA + No Strike Labor Standards Exempted from Labor Standards
  48. 48. Regular Casual Work is “Usually Necessary or Desirable in the Usual Business or Trade of the Employer” Work is NOT “Usually Necessary or Desirable in the Usual Business or Trade of the Employer” Security of Tenure No Security of Tenure
  49. 49. What’s Security of Tenure?
  50. 50. What’s Just Cause? 1.  Serious misconduct; 2.  Willful disobedience (or insubordination); 3.  Gross and habitual neglect of duties; 4.  Fraud; 5.  Willful breach of trust; and 6.  Crime against person of the employer or his immediate family or representatives.
  51. 51. What’s other Just Cause? 1.  Loss of trust; 2.  Gross negligence coupled with a grave consequence; 3.  Incompetence without improvement; 4.  Habitual commission of minor offenses; and 5.  Unfit for continued employment based on the “Totality of Infraction” doctrine.
  52. 52. What’s Authorized Cause? 1.  Installation of labor-saving devices; 2.  Redundancy; 3.  Retrenchment to prevent losses; 4.  Closing or cessation of establishment or undertaking; 5.  Disease prejudicial to health; and 6.  Compulsory retirement.
  53. 53. What’s a Regularized Casual?
  54. 54. Regular Non-Regular Work is “Usually Necessary or Desirable in the Usual Business or Trade of the Employer” Same Security of Tenure Same Tenure is until the age of compulsory retirement Tenure is until completion of the project, ending of the season, expiration of the fixed-term or contract, or cessation of the emergency or temporary contingency
  55. 55. Non-Regular Security of Tenure (?) Project Yes, but tenure expires upon completion of the project. Seasonal Yes, but tenure expires upon the ending of the season. Contractual or Fixed-term Yes, but tenure expires upon the end of contract. Temporary or Emergency Yes, but tenure expires upon the cessation of the emergency or contingency.
  56. 56. Regular Probationary Work is “Usually Necessary or Desirable in the Usual Business or Trade of the Employer” Same Security of Tenure Same No Probationary Period Probationary Period of 6 months or less Regular from Day 1 Regularized upon qualifying, or if allowed to work beyond 6 months (whichever comes earlier)
  57. 57. Hiring Process Firing Process Employee Employee Employee
  58. 58. P.R.P.A. • Outsource Hiring Process Job Contractor • Outsource Work Hiring Process
  59. 59. Job Contracting Principal EmployeeContractor CONTROL NO CONTROLNO CONTROL
  60. 60. Labor ONLY Contracting Principal EmployeeAgent NO CONTROL CONTROLNO CONTROL
  61. 61. Test of Employment Hire Fire Pay* Control 4-Fold Test
  62. 62. What’s Control? End Means Control
  63. 63. Manpower Cooperative Principal EmployeeCooperative CONTROL NO CONTROLNO CONTROL
  64. 64. Self-Employed Cooperative Principal Self- Employed Cooperative NO CONTROL NO CONTROLNO CONTROL
  65. 65. Direct Contracting Employer Employee 5-5-5 Fixed-term
  66. 66. Labor Law 1.  Full protection 2.  Living wage 3.  Humane conditions of work 4.  Security of tenure 5.  Participation in policy and decision-making 6.  Just share in the fruits of production 1.  Self-organization and collective bargaining; 2.  Freedom of expression; and 3.  Strike and other peaceful concerted activities
  67. 67. Labor-Management Cooperation • Workers’ right • Participate • Policy & decision making processes • Rights, benefits and welfare • According to law
  68. 68. Unions and Certification Elections • Workers’ right • Self-organization • Peaceful Concerted Activities • Strike • According to law
  69. 69. Takata (Philippines) Corporation -versus- Bureau of Labor Relations and Samahang Lakas Manggagawa ng Takata (SALAMAT) G.R. No. 196276 June 4, 2014 Supreme Court of the Philippines
  70. 70. Unfair Labor Practice • Violation of workers’ right • Self-organization & CBA • Committed by employer or by union • Defined in Labor Code • Criminal, Civil or Administrative
  71. 71. Collective Bargaining Agreement • Negotiated contract • Exclusive bargaining agent and • Employer • Terms and conditions of employment • Grievance and Arbitration provisions
  72. 72. Level or Rank • Corporate officer • Manager • Managerial staff • Supervisor • Rank-and-file • Confidential
  73. 73. Mode of Payment • Time-based • Results-based • Commission-based • Piece-rate • Pakyaw • Mixed
  74. 74. Other Types of Employee • Field personnel • Personal assistant • Domestic worker • Home worker • Working children • Alien
  75. 75. Other Work Arrangements •  Apprentice and learner •  Intern and trainee •  Self-employed worker or freelancer •  Virtual assistant •  Partner •  Agent •  Consultant and professional
  76. 76. Illegal Discrimination • Women and pregnant women • Marriage and married women • Handicapped workers • Single parents or solo parents • HIV/AIDS positive workers
  77. 77. Other Hiring Practices • Sexual harassment in the workplace • Yellow dog contract • Drug-testing • Non-competition agreement • Non-disclosure agreement • Non-solicitation agreement
  78. 78. What’s the Essentials of HR & Labor Law? D.O.C.U.M.E.N.T.© 2013
  79. 79. How to D.O.C.U.M.E.N.T. © 2013 D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand LR. M aster HR. E mbrace best practices. N egotiate, negotiate, negotiate!!! T ake advice only from experts.
  80. 80. Documentation X 3 • Pre-Employment Documentation. • Employment Documentation. • Pre-Termination & Post Employment Documentation.
  81. 81. Model Employment Contract • Written, dated, and signed • Pre-employment & probation clauses • Regular or non-regular status • Obedience to company policies • Starting wages & specific benefits • Reference to job offer, handbook, etc.
  82. 82. Model Employee Handbook • Written, dated, and signed receipt • Code of discipline • Code of ethics & performance criteria • Resignation & clearance process • Address changes & other policies • Benefits common to all employees
  83. 83. Model 201 File • Employment contract • Job description and job offer sheet • Pre-employment documentation • Job application and bio-data sheet • Acknowledgment receipts • Certifications and test results
  84. 84. How to D.O.C.U.M.E.N.T. © 2013 D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand LR. M aster HR. E mbrace best practices. N egotiate, negotiate, negotiate!!! T ake advice only from experts.
  85. 85. Open-Mindedness • Be tolerant with your employees. • Be receptive to new ideas and possibilities. • Be accepting of the outcome.
  86. 86. Clarity • Clarity in written communication. • Clarity in oral communication and action. • Clarity in purpose and objective.
  87. 87. Understand ER/LR • Understand that: 1.  ER/LR is a “Game”. 2.  the “Rules of the Game”. 3.  the “Goals of the Game”.
  88. 88. Labor Relations Game Unionism and Right to Strike Labor Standard Social Justice Security of Tenure
  89. 89. Shared Responsibility Model Business Labor Progress and Development
  90. 90. Tripartite Model Government BusinessLabor
  91. 91. What is Social Justice? Business Labor Law Law Law Law Law
  92. 92. Rule of Law Constitution Laws (including Labor Laws) Rules & Regulations Jurisprudence Public Policies and Principles of Equity Contracts Company Policies
  93. 93. Elements of Labor Law Labor Law Shared Responsibility Social Justice Rule of Law
  94. 94. Anatomy of a Labor Dispute Capitalist Worker
  95. 95. Win-Win Lose-Win Win-Lose Lose-Lose Conflict Resolution Scenarios
  96. 96. What’s the Essentials of HR & Labor Law? D.O.C.U.M.E.N.T.© 2013
  97. 97. How to D.O.C.U.M.E.N.T. © 2013 D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand LR. M aster HR. E mbrace best practices. N egotiate, negotiate, negotiate!!! T ake advice only from experts.
  98. 98. Master HR • ER/LR is essentially HR. • HR is exemplified by MR. • MR is enhanced by GR.
  99. 99. Embrace Best Practices • Good Practices. • Better Practices. • Best Practices: PROGRESSIVE DISCIPLINE
  100. 100. Negotiate X 3 • Negotiate before a labor dispute. • Negotiate during a labor dispute. • Negotiate after a labor dispute.
  101. 101. Take advice only from experts • Licensed or seasoned experts. • Local labor law experts. • Practical and trust-worthy experts.
  102. 102. How to D.O.C.U.M.E.N.T. © 2013 D ocumentation, documentation, documentation!!! O pen-mindedness. C larity. U nderstand LR. M aster HR. E mbrace best practices: Progressive Discipline N egotiate, negotiate, negotiate!!! T ake advice only from experts.
  103. 103. Ethical Best Practices •  Rotary Code of Conduct: – “Be fair in all dealings with others and treat them with the respect due to them as fellow human being.” •  Human Relations, Civil Code: – “Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.”
  104. 104. Rotary’s 4-Way Test How? Truth Fair Goodwill and Better Friendships Beneficial
  105. 105. Good Faith Test 1.  Do no harm. 2.  Make things better. 3.  Respect others. 4.  Be fair. 5.  Be compassionate.
  106. 106. LABOR LAW MADE EASY (a Facebook page) https://www.facebook.com/legalcoach LIKE COMMENT SHARE TAG

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