Labor Review Practical Questions and Answers

Labor Review Practical Questions and Answers

Distinguish the employment under the Labor Code and the Migrant Workers Act.

The distinction between the Labor Code and the Migrant Workers Act are as follows: 

As to prohibited acts: in the former, the prohibited acts are those listed under Art. 34 of the Labor Code and Department Order No. 141-14 while in the latter, the prohibited acts are those listed under Art. 34 of the Labor Code, Republic Act (R.A.) No. 8042, as amended by R.A. 10022. 

As to jurisdiction: in the former, the Department of Labor and Employment (DOLE) has jurisdiction against any agency if there is a written complaint and the Regional Trial Court (RTC) has jurisdiction in illegal recruitment cases while in the latter, the Philippine Overseas Employment Administrative (POEA) has original and exclusive jurisdiction to all administrative and disciplinary action cases, the Labor Arbiter has jurisdiction over illegal dismissal cases, and the Regional Trial Court (RTC) has also jurisdiction in illegal recruitment cases. 

As to prescription: in the former, there is no prescription period provided by law, while in the latter, it is five (5) years for simple illegal recruitment and it is twenty (20) years for illegal recruitment involving economic sabotage. 

As to solidarily liability: in the former, there is no solidarily liable, while in the latter, the principal employer and the recruitment and placement agency for any and all claims shall be jointly and severally liable. 

Discuss the types of illegal recruitment. 

The two types of illegal recruitment are simple illegal recruitment and illegal recruitment involving economic sabotage. 

In simple illegal recruitment, the offender, who does not have a valid license or authority required by law, committed any of the acts under Art. 34 of the Labor Code, R.A. 8042, as amended by R.A. 10022, against not more than two (2) victims. 

In illegal recruitment involving economic sabotage, it consists of illegal recruitment committed either by a syndicate or on a large scale. In syndicated illegal recruitment, it is carried out by a group of three (3) or more persons conspiring or confederating with one another, who does not have a valid license or authority required by law and has committed any of the acts under Art. 34 of the Labor Code, R.A. 8042, as amended by R.A. 10022. In large-scale illegal recruitment, it is the commission of any of the prohibited acts by an offender, who does not have

a valid license or authority required by law, against three (3) or more persons, individually or as a group. 

What is the difference between the Safe Spaces Act and the Sexual Harassment in the Work Environment? 

Under the Safe Spaces Act and the Sexual Harassment in the Work Environment, the following are their differences: 

As to definition: in the former, it involves crimes committed through any unwanted and uninvited sexual actions or remarks against any person regardless of the motive for committing such action or remarks; while in the latter, it is committed by a person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted. 

As to prohibited acts: in the former, it involves an act or series of acts involving any unwelcome sexual advances, requests, or demand for sexual favors or any acts of sexual nature, whether done verbally, physically, or through the use of technology, such as text messaging or electronic mail or through any other forms of information and communication systems, that has or could have a detrimental effect on the conditions of an individual’s employment or education, job performance, or opportunities; while in the latter, it is committed when the sexual favor is made as a condition in the hiring, in the employment, re-employment, continued employment of said individual, in granting said individual favorable compensation, terms of conditions, promotions, or privileges, or refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee, which would impair the employee's rights or privileges under existing labor laws, and which would result in an intimidating, hostile, or offensive environment for the employee. 

Differentiate private employment agencies from private recruitment entities. 

As to the right to charge a fee, a private employment agency has the right duly recognized in law to charge a fee, directly or indirectly, from the workers or employers or both while a private recruitment entity does not charge any fee from the workers or employers they would be deployed. 

As to persons whom they are allowed to recruit, a private employment agency is authorized to recruit only for overseas placement or deployment while a private recruitment entity is allowed to recruit for both local and overseas deployment. 

As to source of authority, a private employment agency is authorized to recruit and place workers from a document denominated as a “license” while a private recruitment entity sources its authority from a document called “authority.”

Cite the differences between illegal recruitment and trafficking in persons. 

Trafficking in persons is wider in scope than illegal recruitment as the former refers to recruitment, obtaining, hiring, providing, offering, transportation, transfer, maintaining, harboring, or receipt of persons while the latter refers only to acts constituting recruitment and placement of workers. 

Trafficking in persons can be committed within and across Philippine borders while illegal recruitment can only be committed outside Philippine borders. 

Trafficking in persons is committed by use of force or other forms of coercion while no violence is required in committing illegal recruitment. 

Trafficking in persons is committed for the purpose of exploitation in any form and manner while the purpose of illegal recruitment is to deceive the victim in a manner that they were convinced to part with their money. 

May an individual be prosecuted for both illegal recruitment and estafa? Yes, an individual may be prosecuted both for illegal recruitment and estafa. 

In this jurisdiction, it is settled that a person who commits illegal recruitment may be charged and convicted separately of illegal recruitment under the Labor Code and estafa under par. 2(a) of Article 315 of the Revised Penal Code. The offense of illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for conviction, while estafa is malum in se where the criminal intent of the accused is crucial for conviction. Conviction for offenses under the Labor Code does not bar conviction for offenses punishable by other laws. Conversely, conviction for estafa under par. 2(a) of Article 315 of the Revised Penal Code does not bar a conviction for illegal recruitment under the Labor Code. It follows that one's acquittal of the crime of estafa will not necessarily result in his acquittal of the crime of illegal recruitment on a large scale, and vice versa. 

Discuss/Differentiate the leave benefits under the following laws: 

a. VAWC; 

b. Solo Parents Act; 

c. Magna Carta of Women; 

d. Maternity leave; and 

e. Women Night Workers 

Under R.A. No. 9262, a victim of violence against women and children is entitled to paid leave of absence up to ten (10) days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations, extendible when the necessity arises as specified in the protection order. It can be availed if the victim has applied for any protection order with the intention to file a case against her assailant.

Under R.A. No. 8972 or the Solo Parents Welfare Act, any individual who falls under the categories of solo parent is entitled to a maximum of seven (7) working days for every year provided that she or he has rendered at least one (1) year of service. 

Under R.A. No. 9710 or the Magna Carta of Women, a woman employee having rendered continuous aggregate employment service of at least six (6) months for the last twelve (12) months shall be entitled to a special leave benefit of two (2) months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders. 

Under R.A. No. 11210 or the “105-day Expanded Maternity Leave Law”, all covered female workers in the government and private sector, regardless of civil status and legitimacy of the child, shall be granted one hundred five (105) days of maternity leave with full pay and an option to extend for additional thirty (30) days without pay. 

Under R.A. No. 10151 or the Act allowing employment of night workers, measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such work before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided between the time before and after childbirth. 

Kim Tae Yeon, is a professor of Seoul Women's University who came to the Philippines to teach in University of the Philippines in accordance with the Memorandum of Agreement between UP and SWU. Is Kim Tae Yeon exempted or excluded from securing an AEP. Who are then the foreign nationals excluded and exempted from securing AEP. Does she need to secure certification from the Regional Office of DOLE? 

Kim Tae Yeon is exempted from securing AEP. Since she is a foreign national who came to the Philippines to teach in university as an exchange professor under MOA between UP and Seoul Women’s Universities. 

Under the law, the following are exempted from securing an AEP: (1) All members of the diplomatic service and foreign government officials accredited by and with reciprocity arrangement with the Philippine Government; (2) Officers and staff of International organizations of which the Philippine government is a member, and their legitimate spouses desiring to work in the Philippines; (3) Owners and representatives of foreign principals whose companies are accredited by the POEA, who come to the Philippines for a limited period and solely for the purpose of interviewing Filipino applicants for employment abroad; (4) Foreign nationals who come to the Philippines to teach, present, and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government, provided that the exemption is on a reciprocal basis; (5) Permanent resident foreign nationals and probationary or temporary resident visa holders under Section 13 (a-f) of the Philippine Immigration Act of 1940 and Section 3 of the Alien Social Integration Act of 1995 (R.A. 7917); (6) Refugees and Stateless Persons recognized by DOJ pursuant to Article 17 of the UN Convention and Protocol Relating to status of Refugees and Stateless Persons; and (7) All foreign nationals granted exemption by law). On the other hand, the following categories of foreign national are excluded from securing from an AEP: (1) Members of the governing board with voting rights only and do not intervene in the management of the corporation or in the day to day operation of the enterprise; (2) President and Treasurer, who are part-owners of the company; (3) Those providing consultancy services who do not have employers in the Philippines; (4) Intra-corporate transferee who is a manager, executive or specialist as defined below in accordance with Trade Agreements and an employee of the foreign service supplier for at least one (1) year continuous employment prior to deployment to a branch, subsidiary, affiliate or representative office in the Philippines; (5) Contractual service supplier who is manager, executive or specialist and employee of a foreign service supplier which has no commercial presence in the Philippines: (i). who enters the Philippines temporarily to supply a service pursuant to a contract between his/her employer and a service consumer in the Philippines; (ii) Must possess the appropriate educational and professional qualifications; and (iii) must be employed by the foreign service supplier for at least one year prior to the supply of service in the Philippines; (6) Representative of the Foreign Principal/Employer assigned in the Office of Licensed Manning Agency (OLMA). 

Kim Tae Yeon need not secure a Certificate of Exclusion since under the law it is required only when the foreign national is excluded from and not exempted from securing an AEP. 

Jennie had already accomplished 6 months of on the job training in San Miguel Corporation in an occupation approved by the DOLE Secretary. However, she was not hired by SMC. Is Jennie a learner or an apprentice? 

Jennie is an apprentice. 

Under the law, an apprentice is someone who is employed in an apprenticeable occupation on any trade, form of employment or occupation approved by the DOLE Secretary while a learner is employed in a learnable occupation consisting of semi-skilled and other industrial occupations which are non-apprenticeable. Moreover, an apprentice shall have practical training on the job for more than three (3) months but not more than six (6) months while a learner has practical training on the job for a period not exceeding three (3) months only. Lastly, the enterprise is given only an “option” to hire the apprentice as an employee while the enterprise is obliged to hire the learner after the lapse of the learnership period. 

Here, Jennie had already finished the practical training on the job for a period of 6 months, she was employed in an occupation approved by the DOLE Secretary, and unfortunately was not hired by SMC. Since the enterprise is not obligated to hire the apprentice but only have the option to do so. 

Differentiate people with disability, impairment, and handicapped? Are they the same?

Under the law, persons with impairment refers to persons who have any loss, diminution or aberration of psychological, physiological or anatomical structure or function. While, persons with disability are those either: (1) have a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical functions of an individual or activities of such individual; (2) have a record of such an impairment; or (3) being regarded as having such an impairment. On the other hand, persons who are handicapped have disadvantage, resulting from an impairment or a disability that limits or prevents the function or activity that is considered normal given the age and the sex of an individual. 

What is the difference between the denial of application for a new or renewal of Alien Employment permit (AEP) and the cancellation of AEP? 

Under the law, the following are the differences between the denial of application for a new or renewal of Alien Employment permit (AEP) and the cancellation of AEP based on their grounds: 

The following are the grounds for the denial of application for a new or renewal of AEP: availability of a Filipino who is competent, able, and willing to do the job intended for or being performed by the foreign national based on reliable data from government agencies; worked without valid AEP for more than a year, and; Application for renewal with expired visa or with temporary visitor’s visa. 

The following are the grounds for the cancellation of AEP: non-compliance with any of the requirements or conditions for which the AEP was issued; meritorious objection or information against the employment of the foreign national, and; employer terminated the employment of foreign national. 

Differentiate disabled persons from marginalized disabled persons from qualified individuals with a disability. 

The law provides for the definition of the following: 

Disabled persons are those suffering from restriction of different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being 

Marginalized Disabled Persons refer to disabled persons who lack access to rehabilitative services and opportunities to be able to participate fully in socioeconomic activities and who have no means of livelihood or whose incomes fall below poverty threshold. 

A Qualified Individual with a Disability shall mean an individual with a disability who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires.