NTRODUCTION LABOR LAW CONCEPTS, CONTEXT, AND AIMS 1, LABOR LEGISLATION: DEFINITIONS. Labor legislation consists of statutes, regulations and jurisprudence governing the relations between capital and labor, by providing for certain employment standards and a legal framework for defining, adjusting and administering the standards and other incidents of employment or related productive work relationship. ‘The above definition shows that labor legislation is broadly divided into labor'standards and labor relations. Broadly viewed in legal context, “standards” are all matters required or established by law. Minimum wage set by law isa labor standard; so also are the employees’ rights to organize and to retain their jobs until a lawful cause of dismissal occurs. Legal standards, broadly, are norms set by law that must be observed, or else, the actis “substandard,” i.e., unlawful. In short, labor standards refer to terms and conditions of employment that employers must comply with and to which employees are entitled as a matter of legal right. Labor standards, as defined more specifically by jurisprudence, are the minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost-of living allowance, and other monetary and welfare benefits, including occupational, safety, and health standards.' Labor relations law, on the other hand, covers the status, rights and duties, and the institutional mechanisms that govern the individual and collective interactions of employers, employees or their representatives. Issues about employment tenlure and termination fallin the area of labor relations. The Supreme Court itself, ina decision, penned by form labor secretary, said: *Ieisvanvelementaryrl s ‘hat even a probationary emplc ainch revere 40, ro lternity Children's Hospital ws. Secretary of Labor, G.R. No. 78909, June 1939, JLRC and P. Endozo, G:R-NO. * Sameer Overseas Placement Agency, Inc. vs. N 132564, October 20, 1999. ,INTRODUCTION laws were scattered in more than 9 rated academically as a subj sort termination was treated acad Iyasa subjects. Res Hees writers Perfecto V. Fernandez and Camitg ra ject oF employee dismissal in thelr Volume pe Sid not in Volume IT “Labor Standards” (1963 prior to the Labor Code, whet labor statites, emp labor relations. For D. Quiazon took up # titled “Labor Relations ana 19 Se many private business firms the line between labor standards tae of staf in the human resource department. To cover rector sancaedl ‘and labor relations, including motivational ang covered by “employment lav.” ‘Although the distinction between labor standards and labor relations sg useful foracademie purposes, they in reality overlap. For instance, the grievance machinery (he itchouse method to resolve usually an employee's Bmpliny) isa labor relations mechanism, butvery often the subjectofthe complains labor standards such as unpaid overtime work ora disciplinary seiion, Figuratively, one may think of labor standards as the material or the substance to be processed while labor relations is the mechanism that processes the substance. The Philippines’ “labor relations law” is simply called “labor law” in most US universities; our “labor standards law” roughly corresponds to US ‘employment law." Labor management relations cover a broad spectrum of activities which concern relationship of employees to employers both union and non-union. Is “labor” different from “industrial” relations? Again, the question is largely theoretical. Some academics use labor relations to refer to situations involving unionized companiesand industrial relations for non-unionized ones, or’ labor relations to refer to matters internal to the labor sector and industrial relations to managementlabor interactions. The two terms are, practically, interchangeable., ose on te Tether human resource management issubsumed in “industrial relations” or the ether way around) isa longstanding debate between the practitioners aac e Sooo Management Association of the Philippines) and the cordially continues. (School of Labor and Industrial Relations). The debate * See David J. We 2004), p. 361 J. Walsh, Employment Law for Human Resource Practice (Thomso”, * Black's Law Dictionary, 199)LABOR LAW CONCEP1 ‘ONTEXT, AND AIMS. sabon,” in ordinary signification, is understoo though it does not necessarily exclude the appli ghee ised and sled labor. “Skil,” by on a ia — the familiar knowledge of any art or science, united with readinae ay ‘lexterity in execution or performance or in the application of the , fe Science to practical purposes. DEAR Op “Work’ is broader than “labor” as “work” covers all forms of physical ormental exertion, or both combined, for the attainment of some cbiec er than recreation Or amusement per se ron For this reason “worker” is broader than “employee,” as “workers” nay refer to selfemployed people and those working in the service and under the control of another, regardless of rank, title, or nature of work ‘Amessenger, as well as a manager, is a worker. In fact, under Article 13 of the Labor Code, any member of the labor force, whether employed or unemployed, is a *worker.”! 1.1 Essentiality of Employer-Employee Relationship arther, we have to stress a basic point. od as physical toil othe Before going a (“Em-Rel" for short). Thatis, the worker has to be an employee, but not every worker is an employee. “Employee” isa salaried person working for another who controls or supervises the means, manner or method of doing the work. For now it should be pointed out that . Distinguishing an employee from anon-employee is not an casy matter. The distinction carries significant effects, and this we will begin to see in Book III. 1.2. Labor Law and Social Legislation Distinction exists between “labor law” and “social legislation” but it isnoteasy to delineate. No law dictionary, local or foreign, defines “social legislation.” But a definition is called for. We define social legislation 28 those laws that provide particular kinds of protection or benefits to society or segments thereof in furtherance of social justice." In that sense, i ‘Agrarian reform law isa social legislation, so is the law providing for a social security system. The Labor ne ‘ "These ewo volumes mean to be gendersfee. “He,” “his,” ‘worker,” or “ma refers toa person, not necessarily male, unless the context obviously means ocberwise: * Definition copyrighted in a previous edition.INTRODUCTION on State Insurance Fund to cover work-related injuries Code provisions a i clate : “a diseases are, likewise, pieces of social legislation, and occupations tis ng to differentiate, some authors contend that “labor ays? directly affect employment while “Social legislation”) governs effects of employment. This insistence hardly makes things clear. For instance, it is hardly defensible to say’ that emergency ‘medical treatment rendered at the worksite to a worker is covered by “labor law” but not by social legislation, while medical treatment rendered outside the workplace to the same person for the same injury involves a “social legislation” but not a labor Jaw. Specifically, how can one say that medical treatment under Article 162 of the Labor Code is labor law but not social legislation, while sickness benefit under Section 14 of the Social Security law is social legislation but not labor law? Ifdistinction mustbe stressed at all, itis simply in the sense that labor laws are social legislation but not all social legislations are labor laws. In other words, in relation to each other, social legislation as a concept is broader, labor laws narrower. a 2. LABOR LAW OBJECTIVES: CONSTITUTIONAL GOAL OF FREE} DOM FROM POVERTY ery ee Ps “What are labor laws for? Why do labor laws exist? The Labor Code does not say, but the Constitution supplies the answer. ‘The aim and the reason and, therefore, the justification of labor laws is social justice. Social justice is best seen in poverty alleviation, Our ves Fundamental significance to social justice. In }¢ Declaration of Principles and Pp wovides that, w may freedom from poverty happen? The article says: through policies that [1] “provide adequate social services,” [2] ‘promote full employment,” [3] “a rising standard of living,” and an [4] “improved quality of life for all.” (Emphasis supplied) The Constitution further declares: “The goals of the national economy are [1] a more equitable di tion of opportunities, income and wealth; [2] asustained increas © amount of goods and services produced by the nation for the tribut in the " Article Il, Seetion 9. 10LABOR LAW CONCEPTS, CONTEXT, AND AIMS benefit of the people; and an [3] expandi: ivi seg te) fk Social justice, according to Dr. Jose P, Laurel ‘70 Phil. 726 (1940), is “neither communism, nor nor anarchy, but ty as the key rprivileged,”! in Calalang us. Wiliams, despotism, nor atomism means the promotion of the welfare of all the people, the adopter ty the Government of measures calculated to insure economic stability ee the component elements of society through the maintenance of proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments, on the time-honored principle of salus populi est supreme lex.” A forthright pronouncement by our Supreme Court way back in 1949 states: Social justice does not champion division of property or equal- ity of economic status; what it and the Constitution do guaranty are equality of opportunity, equality of political rights, equality before the law, equality between values given and received, and equitable sharing of the social and material goods on the basis of efforts exerted in their production.’ In essence, social justice is both a juridical principle anda societal ‘Boal. As a juridical principle, i ‘ , Asa goal, it means the attainment of decent quality of life of the masses through humane productive efforts. The process and the goal are inseparable because one is the synergistic cause and fice ofthe other. Legal equality opens opportunities that strengthen equalit and equality allows more opportunities. To we:carr visualize social justice as social justice a human face, Visble alleviat i idence of: ‘Sble alleviation of poverty is the best evidenc br & free and easy access to education and economic opportunities. “ducation and poverty perpetuate each other, eee {Attic XIf, Section 1 {Guido vs. Rural Progress Administration, -2089, 0 John K. Galbraith, The Ajfluent Society, pp: 25+ nl \ctober 31, 1949.INTRODUCTION justification of ¢ ee laws have to be viribution to the distribution © wealth. co ob CONSTITUTIONAL BASIS ; *aitution, our Supreme Law, prescribes the The Constit tans because the country’s econ tg of labor and soit bed in the national constitution, Ong Seem ag gonernanes “as justice George Malcolm, explains that the fundame™ the processes of unionization and collective bargaining. Those substan; rights are enforceable through procedures prescribed in the Code, dans by either the parties themselves or the government in its role as seen of employment relations. ae The Labor Code is not one-sided, It is not m to oppress another. All throughout the Code, the Aehasad eaeGENERAL PROVISIONS: ART. 2 application of physical, mental and material resources. In this sense, the term “labor” simply means work and does not exclude the work of business ‘owners and managers. Labor Code articles repeatedly show the interplay of owners of mental, physical and material resources. Their interdependence permeates the Code.! _Thus, the Labor Code speaks of myriad conceptssuch as employment relationship, collective bargaining, and employment termination affecting both employers and employees. Even only on these three matters, it is obvious that the employee is not alone—he is employed by and he bargains with another, That other is the employer. The Labor Code will become unintelligible if it is concerned only with the needs and rights of employees as if there were no employers. Indeed, as Harvard's John Dunlop confirms, in any industrial relations system there are three actors: the employers, the employees, and the government agencies.’ The Labor Code, which embodies our industrial law, deals with the concerns of the three industrial actors. The context of the Labor Code is societal particularly the problems arising from unequal distribution of economic power and wealth. Although the Code’s language is legalistic, in terms of rigid prescriptions, prohibitions, and exceptions, its objective is socio-economic: the well- being of the people. This has to be so because the Labor Code and the labor laws are instruments of socio-economic development. The Court has said that the state is concerned that wages are distributed evenly and, more importandl, that social justice is subserved.® The Labor Code will be hardly relevant if it is not imbued with the mission to uplift the living condition As Gill of Harvard asserts: “Economic development is not a mechanical process; itis not a simple adding up of assorted factors. Ultimately, it is a human Enterprise. And like all human enterprises, its outcome will depend finally on the skill, quality, and attitudes of the men who undertake it... There must be what economists {all entrepreneurs: men who possess the drive, ambition, foresight, and imagination to break through traditional barriers, overcome social inertia, and transform theory into practice... Capital accumulation i indispensable for expanding production and providing employment for the growing labor force.” (Richard T. Gil, Economic ‘Drowipment, (Prentice Hall, 1968), pp. 12and 19), Conformably, Sharp, etal. in their very successful book, affirms that “all goods and services that make up an economy's yeal GDP are produced from labor and capital resources. Without labor and capital, production could not take place.” (Ansel M. Sharp, Charles A. Register, and Paul W. Grimes, Economics of Social Issues (McGraw-Hill, 2006, 17th ed. p. 359) 7 Industrial Relations System, Harvard Business School, 1958, p. 47. SECOP vs, NWPG, etc., G.R. No. 96169, September 24, 1991,PRELIMINARY TITLE ART. 2 of the masses. Itis definitely not meant to make the rich richer ang to the poor floundering in poverty. ia ig Yih be ib True, labor law should not punis ey are channel excessive wealth. It, but the law should temper greed or re . Shou help spread economic opportunities and equality. aa of cs elemen, lew Consensus on economic development is “shared groygh» hee growth” by reducing poverty and Cord that the poor share substantially in the benefits of economic growth." Indeed, any ardent student of law will realize that law cannot jy divorced from economics and ethics. While economics is concerned yi scarce resources or the production and distribution of goods and sery law is concerned with the dispensation of justice or the banishment iniquities in societal life. As Lord Lloyd asserts, “Law without justice is mockery, if not a contradiction.” Of what good is labor law if it does no, address the maldistribution of wealth? Economic injustice is indeed matter of social ethics too. Studying the Labor Code therefore requires a liberal dose of social awareness particularly of the problems of the working people. It should be studied not as cold and lifeless set of rules but as dynamic humanistic Prescriptions for achieving a decent quality of life—decent for both the rich and the poor. The true task of labor law students, therefore, is examine how the law hinders or helps the attainment of socio-economic S0als, how ithelps or fails o help improve the quality of life of the mass “This task perfectly accords with a school’s mission to form men and women “imbued with a burning passion for justice and the fervent desire to sere others.” Hopefully, when their proper time comes, these students will nuke a difference, as they remember their graduation pledge to be ‘guided “not Michael P. Todaro Education, 2009), p. 558, spans Lloyd, The Idea of Law (Penguin, 1987), p. 117 *Thave not forgotten this reminder from Kilpatrick, the noted educator and Fre ne wt loka Dever “in no controversial ame shold te ne hee eee five “the answer” and so close off the necesity for fart study, Instead, the aim s {© encourage each learner to do his own thinking, but not in such a way as to diet ihe Process toward our answer. No indoctrinate, truly educates to democratic independence of personality, and itis this true der ion we seek: What the students re to tue democratic education we and Stephen C. Smith, Economic Development (Pearson isa personable and disposed to think king.” (William Kilpatrick, Phi 24‘GENERAL PROVISIONS ARTS. 2-3 only by what is legal but by what is moral, not i but by what is equitable.” oral, not only by what is permissible ART. 3, DECLARATION OF BASIC POLICY ‘The State shall afford protectionto labor, promote fullemployment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. COMMENTS 1, LABOR LAWS AND SOCIAL ECONOMIC GOALS Article 3 is not a statement of goals but of policy directions towards the goals. In the Introduction, this book speaks of goals of labor laws. The goals of the national economy, says the Constitution, are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people, and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.” Those goals are the route to social justice, a route directed by laws. The laws that should be given “highest priority,” according to Article XIII of the Constitution, include those measures that “reduce social, economic and political inequality” and those that equitably diffuse wealth and political power. Labor laws fall under these categories. Labor laws, in other words, are a significant factor in a nation’s economic life. They explain, partly but weightily, why a nation is poor or prosperous, why a country is competitive or not in the global market. Macroeconomists Gregory and Stuart maintain that the legal system, together with customs, business organizations, property ownership, and other things, form part of the economic institutions thatin turn define an economic system. “The legal system affects the choice of other institutions and also economic performance.” 2. NONDISCRIMINATION In job vacancy announcements, may an employer specify that only " Article XII, Section 1, Constitution. 2 Paul R. Gregory and Robert C. Stuart, The Global Economic System (South- Western, 2014), pp. 10, 25; 224. 25PRELIMINARY TITLE ART. 3 applicants who are graduates of Manila universities can qualify? Or ya, ae pose with pleasant personality” will a considered? On the oi hand, may the selection of applicants be limited only to Persons wig, disability? Or limited only to residents of a certain municipality? “Article $ forbids discrimination without mentioning the word, py c ut, surongly it commands the state to afford protection fo labor and ensure equal opportunities regardless of sex, race OF creed. This is only three of fa range of discriminants, Other articles mention marital status, disabitiy, ‘union membership, and age. zs Moreover, this Article has to be correlated with Article XIII, Section 3 of the 1987 Constitution. Its first sentence is itself a broad statement that rules out discrimination. It says: “he State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment opportunities for all.” An ILO convention defines discrimination as any distinction, exclusion or preference made on the basis of race, color, sex, religion political opinion or social origin which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.! “Discrimination against women’ has a lengthy multi-paragraph definition in Magna Carta of Women that became law (R.A. No. 9710) on July 21, 2016. For the present purpose, the second and third paragraphs of its Section 4 are pertinent: Itincludes any act or omission, including law, policy, administrative measure, or practice, that directly or indirectly excludes or restricts women in the recognition and promotion of their rights and their access to and enjoyment of opportunities, benefits, or privileges. A measure or practice of general application is discrimination against women if it fails to provide for mechanisms to offset or address sex OF gender-based disadvantages or limitations of women, as a result of which Tg sadn csc ta eon and proueon et privileges; or women, more than soe nso Opportunities, benef = 7 men, are shown to have suffered the greater adverse effects of those measures or practices, 2.1 Invalid Policy, Example of Discrimination An instance of discrimination is oe : the case of PTET us. NLRC, °° No. 118978, May 23, 1997, The female applicant indicated “single” © 110 1958 Convention on Discrimination, Employment and Occupation. 26 a adGENERAL PROVISIONS ART. 3 status in the application form, The fact was she contracted marriage afew months earlier. The employer discovered her “concealment of true civil status.” Not satisfied with her explanation, the employer terminated her employment because of “dishonesty.” The employer tried to justify also the company’s policy of not accepting married women. __ The court declared the policy and the dismissal illegal. The court rejected the employer's argument that the cause of dismissal was dishonesty. ‘The fact was that the employer was trying to defend its policy not to hire married female applicants. “In the case at bar, [the employer's] policy of not accepting or considering as disqualified from work any woman worker who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all women workers by our labor laws and by no less than the Constitution. Contrary to petitioner's assertion that it dismissed private respondent from employment on account of her dishonesty, the record discloses clearly that her ties with the company were dissolved principally because of the company’s policy that married women are not qualified for employment in PT & T, and not merely because of her supposed acts of dishonesty.” ‘Another case is similar. Here, the employer's policy prohibits marriage between co-employees. An employee, male or female, who marries another employee of the company is compulsorily required to resign from his or her job. Is the policy valid? No, it’s discriminatory, hence, invalid. The court held in Star Paper Conporation x. Simbol, G.R. No. 16474, April 12, 2006 that the company policy violates the right against discrimination afforded all women under the Labor Code. 2.2 BFOQ: Valid Screening Out But in the same 2006 ruling in the Star Paper case, the court itself to the no-discrimination rule. The exception is bona fide occupational qualification. Where the e ify why a particular attribute or quality is a requirement CODE a en etek il i i ther words, specified attribute or quality of the applicants is legal. In other words, although the specification seems to be a device to exclude or disqualify certain people, the exclusion or screening out may be considered justified. The court explains— explains an exception called BFOQ, meaning bis_ PRELIMINARY TITLE ART. atawoman employee MUSt remain Ung ied could be justified asa “bona fde occupational qualification rg BFOO, where the particular requirements of the jo wow theme, butnot on te ground ofa general principle, such a wee ‘of spreading work in the workplace A Feticene n tha natare wouk! be alld provided i reflects an inherent quay reasonably necessary for satisfactory job per : In another case, the BFOQ is applied again as an exception to yy, law against discrimination. The case (Yrasuegui vs. Philippine Airlines, ¢ 5 er i ity of the flight atten i No. 168081, October 12, 2008) is about obesity of the flig] dant. Hig Weight exceeds the limit the company’s hiring policy pes He was given ‘opportunity to meet an acceptable weight, but he failed. For that reason, the employer, an airline company, terminated his employment. The employee cited discrimination in his illegal dismissal complaint, The court upheld the dismissal and explained that because of BFOQ an employer may be allowed to engage in an otherwise unlawful form of discrimination when the action is based on a.. ++. BFOQ necessary to the normal operation of a business or enterprise. To determine if a policy in hiring or job assignments discriminatory or legal, the policy is examined to ascertain whether the discrimination is necessary to the normal business operations and whether that category denied inclusion is uniquely unsafe, This, ! i religion, sex, or national origin can be shown to be necessary for the job, then a BFOQ exception can be made.” 2.3. Summary: The Meiorin Test ! “[A] requirement ths of Canada, in one case, developed this ining whether an employment policy is justified. Under the test, an employer can justify the iapegied standard) by establishing on the balance of probabilities 1 cones cimblover adopted the standard fora purpose raonlS ! 2. that the employer adopted and good faith belief thar that legitimate workrelate {he Particular standard in an hone it was necessary to the fulfilment f ‘d purpose; and asonably n comp ment of that legitimate workrelated prnees sehen hate 28(GENERAL PROVISIONS. ART. 3 na ferearonably necessary, it must be demonstrated that th possible to accommodate individual employees sharing Heeeenatscteristies of the claimant without imposing undue ardship upon the employer. 3, ANTLAGE DISCRIMINATION ACT RA. No. 10911 [July 21, 2016), otherwise known as the “Anti-Age Discrimination in Employment Act” probibits discrimination against any individual in employment on account of age. In other words, the senior citizens or retirees remain employable and entitled to statutory monetary benefits, like younger employees. DOLE Department Order No. 170, Series of 2017 [February 02, 2017] contains the implementing rules. The law shall apply to all employers, publishers, labor contractors or subcontractors, and labor organizations, whether or not registered. Prohibitions. (a) (b) It shall be unlawful for an employer to: (1) Print or publish, or cause to be printed or published, in any form of media, including the internet, any notice of advertisement relating to employment suggesting prefer- ‘ences, limitations, specifications and discrimination based onage; (2) Require the declaration of age or birth date during the application process; (8) Decline any employment application because of the ind vidual’s age; Discriminate against an individual in terms of compensa- (4) terms and conditions or privileges of employment tion, iditior on account of such individual’s ages (5) Deny any employee's or worker's promotion or opportu- nity for training because of ages (6). Forcibly layoffan employee or worker because of old age; or (7) Impose easy retirement on the basis of such employee's ‘or worker's age- rafal for a labor contractor subcontractor if 1 pefioe Wer for employment or otherwise discriminate against any individual because ‘of such person’s age. 29sean sot ora bccn: seri — eater nd be - ee A auch invidual's ag6 OF si ics ca wine 8 nl inaton ofthe Rules a a ht a pine ule inlrm elon atgetiitations in employment (Aaa feapasnl quicaon(BFOQ) reasonably ‘esa he noma peo of particular busines of eee diretieete onreasonable factors other tage ©) Theineabioctie he emsof bona ie veniory system Avs end the purpose ofthe Rest ‘The tat it bare the tr of a bna fide employee ‘iene olny early retirement plan consistent PhS Prete Rs Pond, That such retirement Cede nen plan sin cordance withthe Labor (teste oe ated lao scam ett he DOLE Secretary after com ‘Gem held accondane wit the purpore ARES « ° i cre rin resets ie eon ke yaheocet GonBeaLeRoMONS ARTS. 34 ‘4. INTERDEPENDENCE; CONSTITUTIONAL BALANCING OF ‘The twoventece delaraton of ba pt eons te employer excep ne pas ae ‘beeen workers and employers” All ote pas perisin ight of workers Butitshould not be deduced hat the bas plete bor to prejudice capital The plain realy sthat oth sectors eed ech other ‘They ate interdependent™one sine tt ine ther Pomoton of full employment for intanc,requres promotion of ob opportunites through the ccs and expan of pte eters Hence the beter understanding at he bap tobalance ‘ort coordinate height and ness of bah workers and employer ‘Articles 3 and 4 ofthe Cade, writen inthe eal 1970 show be viewed the perspec ofthe 1967 Contton which areas "xpi ecogizesshared responsi of employersand worker and te Fight of enterprise to reasonable retrnsoniveument and expansion and growth ART. 4, CONSTRUCTION IN FAOR OF LABOR ‘Alldoubsiatieimplementaionandinterpretadonof the provisions ofthis Code, ncn ts implementing rules and regulations, ball be Fesolved in fovor of abo ‘COMMENTS 1, _ INTERPRETATION AND CONSTRUCTION 1.1 Laborer’ Wires ier Approach carrying out ad interpreting the Labor Coe’ provions and sence tone wring man's ware bald Be he a oun cme Tusk oerpretaion es mec Pac tote beralandcompasiontspitefthe vt an rae the New abr Cae. The pn eed rere soa grente numer emplea toca em ieeererncBeenundertbeloxincooomne a ge maximum idandpotesion ss oer the ng rn the woman 3 Aa Sith Neal oe him br nec snotnimncine” Cre, mien NIH et ; |