Parts of Lecture Notes on Statutory Rights of Media Practitioners as Workers in the private sector by marichu lambino © marichulambino

Labor rights under the Labor Code, IRRs, and labor jurisprudence (this applies to employees in the private sector only)

Notes of marichulambino

1.If your work is “necessary and desirable” to the “usual business” of the company, you have the right to be regularized and you are deemed regularized under the law after six months of continuous work — or, if your work is intermittent, after accumulating one year of the intermittent work — regardless of any contract you signed and regardless of whether or not the employer grants you a written “regularization” instrument. (see Labor Code provisions quoted below)

2.Are you an employee or a “talent”/ “independent contractor” ? The most important standard to consider is the so-called “control test” or whether or not you have control over the time, manner, and place of work. If you are obligated to render regular, daily work of eight hours a day at the workplace or alternately at a beat or field you are assigned to (or in a pandemic “work-from-home” arrangement as determined by the employer based on policies issued by the government) and you answer to and have to be supervised by your superiors, you are deemed to be an employee covered by the Labor Code and not a “talent”/ “independent contractor” governed by the Civil Code.

(See also Sonza vs. ABS-CBN G.R. No. 138051 : June 10, 2004 : Justice Carpio, ponencia)

Guide Question: If you are working for a media organization, and your work consists of covering news events, or writing news reports or scripts, or conducting research, or gathering data, or proofreading articles, is your work “necessary and desirable” to the “usual business” of the company? Why or why not? Do you have control over the time, manner, and place of work, and do you answer to a supervisor? What are the consequences therefor, and why?

Labor Code

Pertinent provisions of law:

Article 281. Probationary employment. Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.

Article 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

Rights of Regular Employees:

Article 83. Normal hours of work. The normal hours of work of any employee shall not exceed eight (8) hours a day.

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Article 84. Hours worked. Hours worked shall include (a) all time during which an employee is required to be on duty or to be at a prescribed workplace; and (b) all time during which an employee is suffered or permitted to work.

Rest periods of short duration during working hours shall be counted as hours worked.

Article 85. Meal periods. 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.

Article 86. Night shift differential. Every employee shall be paid a night shift differential of not less than ten percent (10%) of his regular wage for each hour of work performed between ten o’clock in the evening and six o’clock in the morning.

Article 87. Overtime work. 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. 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.

Article 88. Undertime not offset by 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.

Article 89. Emergency overtime work. Any employee may be required by the employer to perform overtime work in any of the following cases:

When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive;

When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity;

When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature;

When the work is necessary to prevent loss or damage to perishable goods; and

Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer.

Any employee required to render overtime work under this Article shall be paid the additional compensation required in this Chapter.

Article 90. Computation of additional compensation. 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.

Chapter II

WEEKLY REST PERIODS

Article 91. Right to weekly rest day.

It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than twenty-four (24) consecutive hours after every six (6) consecutive normal work days.

The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Secretary of Labor and Employment may provide. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds.

Article 92. When employer may require work on a rest day. The employer may require his employees to work on any day:

In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life and property, or imminent danger to public safety;

In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which the employer would otherwise suffer;

In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures;

To prevent loss or damage to perishable goods;

Where the nature of the work requires continuous operations and the stoppage of work may result in irreparable injury or loss to the employer; and

Under other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment.

Article 93. Compensation for rest day, Sunday or holiday work.

Where an employee is made or permitted to work on his scheduled rest day, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage. An employee shall be entitled to such additional compensation for work performed on Sunday only when it is his established rest day.

When the nature of the work of the employee is such that he has no regular workdays and no regular rest days can be scheduled, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage for work performed on Sundays and holidays.

Work performed on any special holiday shall be paid an additional compensation of at least thirty percent (30%) of the regular wage of the employee. Where such holiday work falls on the employee’s scheduled rest day, he shall be entitled to an additional compensation of at least fifty per cent (50%) of his regular wage.

Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate.

Chapter III

HOLIDAYS, SERVICE INCENTIVE LEAVES AND SERVICE CHARGES

Article 94. Right to holiday pay.

Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments regularly employing less than ten (10) workers;

The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate; and

As used in this Article, “holiday” includes: New Year’s Day, Maundy Thursday, Good Friday, the ninth of April, the first of May, the twelfth of June, the fourth of July, the thirtieth of November, the twenty-fifth and thirtieth of December and the day designated by law for holding a general election.

Grounds for Termination

Article 282. Termination by employer. An employer may terminate an employment for any of the following causes:

Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

Gross and habitual neglect by the employee of his duties;

Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

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

Other causes analogous to the foregoing.

Civil Code

For “talents” or “independent contractors”: The terms and conditions of work are governed by the contract between the parties as covered by the Civil Code, including the following provisions of the Civil Code:

Art. 1713. By the contract for a piece of work the contractor binds himself to execute a piece of work for the employer, in consideration of a certain price or compensation. The contractor may either employ only his labor or skill, or also furnish the material. (1588a)

Art. 1715. The contract shall execute the work in such a manner that it has the qualities agreed upon and has no defects which destroy or lessen its value or fitness for its ordinary or stipulated use. Should the work be not of such quality, the employer may require that the contractor remove the defect or execute another work. If the contract fails or refuses to comply with this obligation, the

employer may have the defect removed or another work executed, at the

contractor’s cost. (n)