7. ESTADO DEL ARTE
8.5. Construcción de Objetos Virtuales de Aprendizaje OVAS
8.5.6. Banco de Objetos en Latinoamérica
Article 128. Visitorial and enforcement power.
The Secretary of Labor and Employment or his duly authorized representatives, including labor regulation officers, shall have access to employer’s records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto.
Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. (As amended by Republic Act No. 7730, June 2, 1994).
An order issued by the duly authorized representative of the Secretary of Labor and Employment under this Article may be appealed to the latter. In case said order involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Secretary of Labor and Employment in the amount equivalent to the monetary award in the order appealed from. (As amended by Republic Act No. 7730, June 2, 1994)
The Secretary of Labor and Employment may likewise order stoppage of work or suspension of operations of any unit or department of an establishment when non- compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. Within twenty-four hours, a hearing shall be conducted to determine whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of work or suspension of operation.
It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective the orders of the Secretary of Labor and Employment or his duly authorized representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article.
Any government employee found guilty of violation of, or abuse of authority, under this Article shall, after appropriate administrative investigation, be subject to summary dismissal from the service.
The Secretary of Labor and Employment may, by appropriate regulations, require employers to keep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this Code.
Article 129. Recovery of wages, simple money claims and other benefits. Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this Code, arising from employer-employee relations: Provided, That such complaint does not include a claim for reinstatement: Provided further, That the aggregate money claims of each employee or househelper does not exceed Five thousand pesos (P5,000.00). The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same. Any sum thus recovered on behalf of any employee or househelper pursuant to this Article shall be held in a special deposit account by, and shall be paid on order of, the Secretary of Labor and Employment or the Regional Director directly to the employee or househelper concerned. Any such sum not paid to the employee or househelper because he cannot be located after diligent and reasonable effort to locate him within a period of three (3) years, shall be held as a special fund of the Department of Labor and Employment to be used exclusively for the amelioration and benefit of workers.
Any decision or resolution of the Regional Director or hearing officer pursuant to this provision may be appealed on the same grounds provided in Article 223 of this Code, within five (5) calendar days from receipt of a copy of said decision or resolution, to the National Labor Relations Commission which shall resolve the appeal within ten (10) calendar days from the submission of the last pleading required or allowed under its rules.
The Secretary of Labor and Employment or his duly authorized representative may supervise the payment of unpaid wages and other monetary claims and benefits, including legal interest, found owing to any employee or househelper under this Code. (As amended by Section 2, Republic Act No. 6715, March 21, 1989)
JURISDICTION, SCOPE AND LIMITATIONS Cirineo Bowling Plaza vs. Gerry Sensing
GR 146572, 01/14/2005
The visitorial and investigatory power under ART 128(a) is broad enough to cover any fact, condition or matter related to the enforcement not only of the Labor Code but of any labor law.
Such power is likewise unlimited by the amount of monetary liability involved. The liability, determined through appropriate proceedings, may be enforced through an order or writ of execution regardless of the amount involved, according to ART 128b as amended by RA 7730.
Pursuant to RA 7730, the jurisdictional limitations imposed by ART 129 on the visitorial and enforcement powers of the RD under ART 128, have been repealed. The phrase “NOTWITHSTANDING THE PROVISIONS OF ARTICLES 129 AND 217 OF THE LC TO THE
University of San Carlos – School of Law and Governance | Based on the Outline of JMM Page 65 CONTRARY,” erases all doubts as to the amendatory nature of RA b7730. The amendment in effect overturned the rulings in the Aboitiz and Servandos cases in so far as the restrictive effect of ART 129 on the use of the power under ART 128 is concerned.”
The SOLE or his duly authorized representative, in the exercise of their visitorial and enforcement powers, are now authorized to issue COMPLIANCE ORDERS to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of the labor employment and enforcement officers or industrial safety engineers made in the course of inspection, SANS, any restriction with respect to the jurisdictional amount of 5, 000 provided under ART 129 and ART 217.
Q: Does the Labor Code confer this Visitorial Power to be exercised by the Regional Director? A: YES. The Regional Director is the duly authorized representative of the SOLE.
JURISDICTION
“Art. 129. Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this Code, arising from employer-employee relations: Provided, That such complaint does not include a claim for reinstatement: Provided further, That the aggregate money claims of each employee or househelper does not exceed Five thousand pesos (P5,000.00). The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same. Xxxx”
Article 217. Jurisdiction of the Labor Arbiters and the Commission.
Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural:
Unfair labor practice cases; Termination disputes;
If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment;
Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;
Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and
Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.
The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters.
Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. (As amended by Section 9, Republic Act No. 6715, March 21, 1989)
PROCEDURE ON VISITORIAL AND ENFORCEMENT POWER (a) There is a report on the non-compliance of the employer with the minimum wage law.
(b) Upon receipt of the Regional Director of this information, there will be an ORDER OF INSPECTION. The SOLE or the Regional Director.
The order of inspection will simply state that this person is authorized to conduct an inspection on this date, place and time. (c) This inspection authority will then be implemented by a Labor and Employment Officer of the DOLE. And this person will visit the employer’s premises and then conduct an inspection.
He will inspect the payroll to determine if indeed there was underpayment of wages, inspect the employer’s premises, interview and ask the employees themselves if they are indeed paid such amount of wages, compare the payment records and confer with the employees.
(d) If the inspector finds that there is a violation or underpayment of wages, he will make an INSPECTION REPORT Usually embodied in a NOTICE OF INSPECTION RESULTS.
All violations that the Labor Employment Officer will find in the employer’s premises will be enumerated and be put as his findings in the notice.
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(f) The employer is given the opportunity to comply within 7 days; or
(g) The employer may contest the notice of inspection results and raise issues which cannot be resolved without considering DOCUMENTARY PROOFS that are not verifiable in the normal course of inspection.
HOW SOON? The employer shall raise such objections during the hearing of the case or at any time after the receipt of the notice of inspection results.
(h) If on the other hand, the employer does not or fails to contest the notice of inspection result, as well as fails to comply with such notice. The Regional Director will issue an ORDER OF COMPLIANCE.
The order of compliance will basically be based on the notice of inspection results, so if the inspection says that you are underpaying 10 workers or just paying them P100, the RD will issue an order of compliance ordering this time the employer to pay the following workers the following sums of money.
(i) Remedy of the employer from the order of compliance.
The order of compliance can be questioned within 10 calendar days thru an APPEAL with SOLE (filing of bond) Then the employer will file a motion for reconsideration with the RD within 7 calendar days.
If the employer files it beyond 7 days but not beyond 10 days, that will be considered an appeal from the RD to the SOLE. (j) If the employer will not file a motion for reconsideration, what will happen to the order of compliance? It becomes final and executory.
The SOLE or RD can issue a WRIT OF EXECUTION, then it will levy.
Pursuant to Rule 39 in Civil Procedure, the final judgment can be subject of execution and the RD can levy on the properties of the employer to satisfy the judgment or the order of compliance.
Note: that this is if there is no obedience to the order of compliance or there is no contesting done or no motion for reconsideration resorted to by the employer in that regard.
(k) On the other hand, if the employer validly contests by raising issues supported by documentary proofs which were not considered in the course of inspection – what will happen?
Can the RD still proceed with the case? NO.
The RD will endorse the case to the appropriate Arbitration Branch of the NLRC.
Why? It is no longer a summary proceeding. It now becomes an adversarial proceeding which the RD is not equipped to handle. RD has no other recourse but to endorse it to the Arbitration Branch of the NLRC.
Note: It is very important that you be able to contest the notice of inspection results within the time frame authorized by the RULES ON DISPOSITION OF LABOR STANDARDS CASES. Because if you fail or if you contest but the wrong way, or you fail to contest it at all, then the RD will have no recourse but to issue an order of compliance. And then your remedy therefore is no longer to contest but to a motion for reconsideration or probably an appeal to the SOLE. In case you still fail to do that, then that order of compliance will become final and executory for which the SOLE or the Rd for that matter is now authorized to issue a writ of execution. Then that is the end of the case.
SOLE (no appeal), Remedy to CA R65, then to SC Rule 45.
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VISITORIAL AND ENFORCEMENT POWER FLOWCHART
No START Issue Inspection Authority (RD) Inspection by LSWO Violation No Issue Notice of Inspection Result (NIR) Yes END Issue NIR Compiled after 7 days Yes END Issue Compliance Order (CO) Complaint Contested No Yes Conduct Hearing Decision Settled END Endorsed to Labor Arbiter
employer contests the findings of the Labor Standards and Welfare Officers and the issues cannot be resolved without considering evidentiary matters that are not verifiable in the normal course of inspection
Appeal from decision of LA to NLRC Within 10 days from
receipt of decision MR allowed within 10 days Compiled after 7 days Yes END
No File MR within 7 days
– CO final and executor after 10 days
from Resolution of MR if not appealed Issue Writ of Execution Satisfaction of Judgment END
Appeal to SOLE (Bond) Within ten (10) calendar days
from receipt of RD Decision. Grounds:
(1) Prima facie Grave Abuse of Discretion; (2) Order was secured
through fraud, coercion or graft and corruption; (3) Pure questions of law; (4) Serious errors in the
findings of facts MR necessary before special civil
action
PETITION FOR CERTIORARI IN THE COURT OF APPEALS (RULE
65)
Not later than 60 days from notice of the judgment, order or resolution
Questions of fact or law or both APPEAL BY CERTIORARI IN THE SUPREME COURT UNDER
RULE 45
Within fifteen (15) days from notice of the judgment or final order or resolution
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1. The employee files a pro-forma complaint with the Regional Director. 2. The Regional Director dockets the complaint as simple money claim.
3. The Regional Director issues summons served upon employer (respondent), together with the copy of the compliant, and sends a copy of the same to the respondent.
4. The employer-respondent is given 5 calendar days to answer the complaint. The employer can either admit the allegations or deny it
5. After receiving the answer, the Regional Director calls for a summary hearing and decides on the matter within 30 calendar days from the date of filing of the complaint
6. If the decision is adverse, the employer may appeal the decision to the NLRC within 5 calendar days from the receipt of the
copy of said decision or resolution. The appeal must conform to the requirements provided for under Article 217 and the
NLRC Rules. To perfect the appeal, the employer must post a cash or security bond.
In the appeal from the RD decision to the NLRC, the aggrieved party has 5 calendar days, while in the appeal from LA decision to the NLRC; the aggrieved party has 10 days from receipt of notice of decision.
7. From the adverse decision of the NLRC, the employer can then file a motion for reconsideration.
8. If said motion is denied, the employer may still file a Special Civil Action for Certiorari with the Court of Appeals under Rule 65 of the Rules of Court within a period of 60 days from receipt of the decision.
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SIMPLE MONEY CLAIMS FLOWCHART
START END Pro-forma Complaint with Regional Director RD Issues Summons served upon employer-respondent
5 days to file Answer
Summary Hearing Must be decided within 30
calendar days from date of filing of the complaint
Appealable to NLRC
APPEAL TO NLRC Must be within 5 calendar days from the
receipt of a copy of decision Shall resolve appeal within 10 calendar
days from the submission of the last pleading
Grounds:
(5) Prima facie Grave Abuse of Discretion;
(6) Order was secured through fraud, coercion or graft and corruption;
(7) Pure questions of law; (8) Serious errors in the findings of
facts
MR necessary before filing of Special Civil Action
PETITION FOR CERTIORARI IN THE COURT OF APPEALS (RULE
65)
Not later than 60 days from notice of the judgment, order or resolution
Questions of fact or law or both APPEAL BY CERTIORARI IN THE SUPREME COURT UNDER
RULE 45
Within fifteen (15) days from notice of the judgment or final order or resolution
Pure Questions of Law
Admit
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