SECTORES AFINES Y AUXILIARES
4.1.5 Estrategia, estructura y rivalidad de las empresas
Section 1. All employers are hereby required to pay all their rank-file employees a 13th month pay not later than December 24 of every year. With the removal of the ceiling P1, 000.00 all rank-and-file employees are now entitled to a 13th month pay regardless of the amount of basic salary that they
received in a month, such employees as entitled to the benefit regardless of their designation or employment status and irrespective of method by which their wages are paid provided that they have worked for at least 1 month during the calendar year.
EXEMPTED EMPLOYERS
a. government and any of its political subdivisions including GOCC
b. employers already paying their employees a 13th month pay or its equivalent
c. employers of household helpers and persons in the personal service of another in relation to such workers
d. employers of those who are paid on purely commission, boundary or task basis and those who are paid a fixed amount for performing specific work
* The term “its equivalent” shall include Christmas bonus, mid-year bonus, cash bonuses and other payments amounting to not less than 1/12 of the basic salary.
Sec. 4. The minimum of the 13th month pay required by law shall not be less than 1/12 of the total basic salary earned by an employee within a calendar year. Earned because it is possible that the employee has used his vacation leave, leave without pay which should not be counted. The employer can provide for more if he so desire.
Time of payment
The required 13th month pay shall be paid not later than December 24 of every year. An employer, however may give to his employee ½ of the required 13th month pay before the opening of the regular school year and the other half on or before the 24th of December of every year
.
In any establishment where a union has been recognized or certified as the collective bargaining agent of the employees therein, the periodicity or frequency of payment of the 13th month pay may be the subject of agreement.
13th Month Pay of a Resigned or Separated Employee
An employee who has resigned or whose services were terminated at anytime before the time for payment of the 13th month pay is
entitled to this monetary benefit on proportion to the length of time he worked during the year, up to the time of his resignation or termination from the service, the payment maybe demanded by the employee upon the cessation of ER-EE relationship. The benefits granted shall not be credited as part of the employees and other benefits.
Workers paid by result are not entitled to this benefit only those who are paid on apiece rate basis are specifically mentioned by express provisions of the law.
Basic salary shall include all remuneration or earnings paid by an employer to an employee for services rendered but does
not include allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary, such as the cash equivalent of unused vacation and sick leave credits, overtime premium, night shift differential and holiday pay and cost-of-living- allowance. However these salary related benefits should be included as part of the basic salary related benefits should be included as part of the basic salary in the computation of the 13th month pay if by individual or collective agreement, company practice or policy, the same are treated as part of the basic salary of the employees.
The law provides that the only requirement is that the employee must have at least rendered 1 month of service during the
calendar year. The does not forfeit or there is no forfeiture provision under the law. Adjudication of Claims
Non-payment of the thirteenth-month pay provided by the Decree and these rules shall be treated as money claims cases and shall be processed in accordance with the Rules Implementing the Labor Code of the Philippines and the Rules of the National Labor Relations Commission.
13th Month Pay for Certain Types of Employees
(a) Employees Paid by Results. — Employees who are paid on piece work basis are by law entitled to the 13th month pay.
Employees who are paid a fixed or guaranteed wage plus commission are also entitled to the mandated 13th month pay, based on their total earnings during the calendar year, i.e., on both their fixed or guaranteed wage and commission.
(b) Those with Multiple Employers. — Government employees working part time in a private enterprise, including private educational institutions, as well as employees working in two or more private firms, whether on full or part time basis, are entitled to the required 13th month pay from all their private employers regardless of their total earnings from each or all their employers.
University of San Carlos – School of Law and Governance | Based on the Outline of JMM Page 106 (c) Private School Teachers. — Private school teachers, including faculty members of universities and colleges, are entitled to the required 13th month pay, regardless of the number of months they teach or are paid within a year, if they have rendered service for at least one (1) month within a year.
Note: 13TH Month Pay is tax exempt
PATERNITY LEAVE ACT OF 1996 (R.A 8187)
SECTION 2. Notwithstanding any law, rules and regulations to the contrary, every married male employee in the private and public sectors shall be
entitled to a paternity leave of seven (7) days with full pay for the first four (4) deliveries of the legitimate spouse with whom he is cohabiting. The male employee applying for paternity leave shall notify his employer of the pregnancy of his legitimate spouse and the expected date of such delivery.
For purposes, of this Act, delivery shall include childbirth or any miscarriage.
The covered employee is entitled to a 7-day leave with full pay (BASIC SALARY) for the first 4 deliveries/miscarriage of his lawful spouse.
SECTION 5. Any person, corporation, trust, firm, partnership, association or entity found violating this Act or the rules and regulations promulgated
thereunder shall be punished by a fine not exceeding Twenty-five thousand pesos (P25,000) or imprisonment of not less than thirty (30)days nor more than six (6) months.
If the violation is committed by a corporation, trust or firm, partnership, association or any other entity, the penalty of imprisonment shall be imposed on the entity's responsible officers, including, but not limited to, the president, vice-president, chief executive officer, general manager, managing director or partner directly responsible therefor.
Revised Implementing Rules (Series of 1996)
SECTION 3. Conditions to entitlement of paternity leave benefits. — A married male employee shall be entitled to paternity benefits provided that: (a) he is an employee at the time of delivery of his child;
(b) he is cohabiting with his spouse at the time she gives birth or suffers a miscarriage. (c) he has applied for paternity leave in accordance with Section 4 hereof; and (d) his wife has given birth or suffered a miscarriage.
SECTION 4. Application for leave. — The married male employees shall apply for paternity leave with his employer within a reasonable period of time from the expected date of delivery by the pregnant spouse, or within such period as may be provided by company rules and regulations or by collective bargaining agreement, provided that prior application for leave shall not be required in case of miscarriage.
SECTION 5. Availment. — Paternity leave benefits shall be granted to the qualified employee after the delivery by his wife, without prejudice to an employer allowing an employee to avail of the benefit before or during the delivery; provided, that the total number of days shall not exceed seven (7) days for each delivery.
SECTION 6. Benefits. — The employee is entitled to his full pay, consisting of basic salary, for the seven (7) days during which he is allowed not to report for work, provided, that his pay shall not be less than the mandated minimum wage.
SECTION 7. Non-commutation of benefits. — In the event that paternity leave benefit is not availed of, said leave shall not be convertible to cash.
DOMESTIC ADOPTION ACT OF 1998 (RA 8552)
Sec. 12. Supervised Trial Custody. — No petition for adoption shall be finally granted until the adopter(s) has been given by the court a supervised trial custody period for at least six (6) months within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. During said period, temporary parental authority shall be vested in the adopter(s).
The court may motu proprio or upon motion of any party reduce the trial period if it finds the same to be in the best interest of the adoptee, stating the reasons for the reduction of the period. However, for alien adopter(s), he/she must complete the six (6)-month trial custody except for those enumerated in Sec. 7 (b) (i) (ii) (iii).
If the child is below seven (7) years of age and is placed with the prospective adopter(s) through a pre-adoption placement authority issued by the Department, the prospective adopter(s) shall enjoy all the benefits to which biological parent(s) is entitled from the date the adoptee is placed with the prospective adopter(s).
Implementing Rules and Regulations of RA 8552
SECTION 34. Benefits. — The adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled. Maternity and paternity benefits and other benefits given to biological parents upon the birth of a child shall
University of San Carlos – School of Law and Governance | Based on the Outline of JMM Page 107 be enjoyed if the adoptee is below seven (7) years of age as of the date the child is placed with the adoptive parents thru the Pre- Adoptive Placement Authority issued by the Department.
RETIREMENT PAY LAW
ART. 287. Retirement. — Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract.
In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any collective bargaining agreement and other agreements: Provided, however, that an employee's retirement benefits under any collective bargaining and other agreements shall not be less than those provided herein.
In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year.
Unless the parties provide for broader inclusions, the term one-half (1/2) month salary shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days of service incentive leaves.
An underground mining employee upon reaching the age of fifty (50) years or more, but not beyond sixty (60) years which is hereby declared the compulsory retirement age for underground mine workers, who has served at least five (5) years as underground mine worker, may retire and shall be entitled to all the retirement benefits provided for in this Article.
Retail, service and agricultural establishments or operations employing not more than ten (10) employees or workers are exempted from the coverage of this provision.
Violation of this provision is hereby declared unlawful and subject to the penal provisions provided under Article 288 of this Code.
Nothing in this Article shall deprive any employee of benefits to which he may be entitled under existing laws or company policies or practices.
REQUISITES:
1. He is still employed at the time of the passage of the law – January 7, 1993 2. His eligible for retirement
Optional – 60 yrs old and at least 5 yrs of service Compulsory – beyond 65 yrs old
Mining employees:
Optional – 50 yrs old and at least 5 yrs of service Compulsory – beyond 60 yrs old
Except: CBA provides retirement age lower than the statutory age for retirement. Not Illegible:
1. Retail, service and agricultural establishments or operations employing not more than (10) employees or workers. 2. Covered by Civil Service Law
3. Dismissed from work due to just cause.
1996 LABOR ADVISORY ON RETIREMENT PAY LAW COVERAGE
RA 7641 or the Retirement Pay Law shall apply to all employees in the private sector, regardless of their position, designation or status and irrespective of the method by which their wages are paid. They shall include part-time employees, employees of service and other job contractors and domestic helpers or persons in the personal service of another.
The law does not cover employees of retail, service and agricultural establishments or operations employing not more than ten (10) employees or workers and employees of the National Government and its political subdivisions, including Government-owned and/or controlled corporations, if they are covered by the Civil Service law and its regulations.
COMPUTATION OF RETIREMENT PAY
A covered employee who retires pursuant to RA 7641 shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year.
The law is explicit that “one-half month salary shall mean fifteen(15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days service incentive leaves” unless the parties provides for broader inclusions. Evidently, the law expanded the concept of “one-half month salary” form the usual one month salary divided by two.
University of San Carlos – School of Law and Governance | Based on the Outline of JMM Page 108 In reckoning the length of service, the period of employment with the same employer before the effective date of the law on January 7, 1993 shall be included.
SUBSTITUTE RETIREMENT PLAN
Qualified workers shall be entitled to the retirement benefit under RA 7641 in the absence of any individual or collective Facilities for Women
Art 132 of the Labor Code
The Secretary of labor shall establish standards that will insure the safety and health of women employees in appropriate cases, he shall by regulations, require employers to:
1. provide seats proper for women and permit them to use such seat when they are free from work and during working g hours, provided they can perform their duties ion this position without detriment to efficiency
2. to establish separate toilet and lavatories for men and women and provide at least dressing room for women 3. to establish a nursery in a workplace for the benefit of the women employees therein
4. to determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like
SOLO PARENT WELFARE ACT (R.A.9872) Section 3. Definition of Terms. – Whenever used in this Act, the following terms shall mean as follows: (a) "Solo parent" - any individual who falls under any of the following categories:
(1) A woman who gives birth as a result of rape and other crimes against chastity even without a final conviction of the offender: Provided, That the mother keeps and raises the child;
(2) Parent left solo or alone with the responsibility of parenthood due to death of spouse;
(3) Parent left solo or alone with the responsibility of parenthood while the spouse is detained or is serving sentence for a criminal conviction for at least one (1) year;
(4) Parent left solo or alone with the responsibility of parenthood due to physical and/or mental incapacity of spouse as certified by a public medical practitioner;
(5) Parent left solo or alone with the responsibility of parenthood due to legal separation or de facto separation from spouse for at least one (1) year, as long as he/she is entrusted with the custody of the children;
(6) Parent left solo or alone with the responsibility of parenthood due to declaration of nullity or annulment of marriage as decreed by a court or by a church as long as he/she is entrusted with the custody of the children;
(7) Parent left solo or alone with the responsibility of parenthood due to abandonment of spouse for at least one (1) year;
(8) Unmarried mother/father who has preferred to keep and rear her/his child/children instead of having others care for them or give them up to a welfare institution;
(9) Any other person who solely provides parental care and support to a child or children;
(10) Any family member who assumes the responsibility of head of family as a result of the death, abandonment, disappearance or prolonged absence of the parents or solo parent.
A change in the status or circumstance of the parent claiming benefits under this Act, such that he/she is no longer left alone with the responsibility of parenthood, shall terminate his/her eligibility for these benefits.
(b) "Children" - refer to those living with and dependent upon the solo parent for support who are unmarried, unemployed and not more than eighteen (18) years of age, or even over eighteen (18) years but are incapable of self-support because of mental and/or physical defect/disability. (c) "Parental responsibility" - with respect to their minor children shall refer to the rights and duties of the parents as defined in Article 220 of Executive Order No. 209, as amended, otherwise known as the "Family Code of the Philippines."
(d) "Parental leave" - shall mean leave benefits granted to a solo parent to enable him/her to perform parental duties and responsibilities where physical presence is required.
(e) "Flexible work schedule" - is the right granted to a solo parent employee to vary his/her arrival and departure time without affecting the core work hours as defined by the employer.
University of San Carlos – School of Law and Governance | Based on the Outline of JMM Page 109
Section 6. Flexible Work Schedule. - The employer shall provide for a flexible working schedule for solo parents: Provided, That the same shall not affect individual and company productivity: Provided, further, That any employer may request exemption from the above requirements from the DOLE on certain meritorious grounds.
Section 7. Work Discrimination. - No employer shall discriminate against any solo parent employee with respect to terms and conditions of employment on account of his/her status.
Section 8. Parental Leave. - In addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year shall be granted to any solo parent employee who has rendered service of at least one (1) year.
IMPLEMENTING RULES AND REGULATIONS OF RA 8972 (2002)
Parental Leave shall mean leave benefits granted to solo parent to enable him/her to perform parental duties and responsibilities
where physical presence is required
Flexible Work Schedule is the right granted to a solo parent employee to vary his/her arrival and departure time without affecting the
core work hours as defined by the employer
ARTICLE IV – Criteria for Support
Section 7. Criteria for Support – Any solo parent whose income in the place of domicile falls equal to or below the poverty threshold as set by the NSCB and subject to the assessment of the duly appointed or designated social worker in the area shall be eligible for assistance: Provided, however, That any solo parent whose income is above the poverty threshold shall enjoy the benefits mentioned in Sections 16, 17, 18, 19, 20, 21 and 23 of these Rules.
For purposes of the Act and these Rules, the place of domicile shall refer to the residence mentioned in Section 8(a) of these Rules.
Section 8. Qualifications of Solo Parent – A solo parent seeking benefits other than those provided for under Sections 16, 17, 18, 19, 20, 21 and 23 of