Labor Standards
2021
Atty. Paciano F. Fallar Jr.
SSCR-CoL
NOTES ON SPECIAL GROUP OF WORKERS
(LEARNERSHIP,APPRENTICESHIP,
PWD, CHILD WORKERS, KASAMBAHAYS,
WOMEN)
Th word “special” is used here in a very limited sense, that is, these class of workers are
covered by specific provisions in the Labor Code or by special laws.
A. Apprentices and Learners
"Apprenticeship " is an employment contract with practical training on the job for
more than three (3) months but not more than six (6) months, supplemented by
related theoretical instruction. Only employers in highly technical industries may
employ apprentices and only in apprenticeable occupations approved by the
TESDA. The minimum age for apprentices is 14 years(Arts. 58-60, Labor Code).
In an apprenticeship agreement there is no commitment on the part of the employer to
employ the apprentice after the completion of the training.The employer is allowed to
pay the apprentice with 75% of the minimum wage rate.
An apprenticeship agreement must be approved by TESDA; otherwise, the
apprentice will be considered a regular employee (Nitto Enterprises vs NLRC, GR No.
114337, 29 September 1995; Century Canning Corp vs CA, GR No. 152894, 17 August
2007).If a person has been hired as regular employee, it would be illegal to
subsequently engage them as apprentices (Atlanta Industries Inc vs Sebolino, GR No.
187320, 26 January 2011).
If a person has been engaged for a certain skill/occupation as apprentice, can he be
again be engaged for a different skill/occupation under another apprenticeship
program? Since the purpose of apprenticeship is not employment ( unlike learnership), I
believe that this is legally tenable. The purpose of the law is not necessarily for the
apprentice to train for employment, but for him to acquire skills which he may use to ply
his own small business.
Jurisdiction for any violation of the apprenticeship agreement is granted to the DOLE
(Art. 65-67, Labor Code). But a case for illegal dismissal, on the theory that an
apprentice is a regular employee, shall be filed with the Arbitration Branch of the NLRC.
"Learnership" is an employment contract for training in semi-skilled and other
industrial occupations which are non-apprenticeable, not toexceed three(3) months,
with or without related theoretical instructions (Art. 70, Labor Code). The minimum age
for learners is 15 years; those below 18 years old may only be employed in non-
hazardous occupations.What are hazardous occupations is determined by the DOLE.
In a learnership agreement, there is a commitment on the part of the employer to
employ the leaner as regular employee after the completion of the training.The
employer is allowed to pay the leaner with 75% of the minimum wage rate.
1
Since there is a commitment to employ the learner, the employer is better off hiring him
as probationary employee since the period of training would be longer ( usually six [6]
months). Avoiding the rigidity of security of tenure is a higher value than paying only
75% of the minimum wage rate.
B. Handicapped workers
"Handicapped " workers are those whose earning capacity is impaired by age or
physical or mental deficiency (Art. 78, Labor Code). Like apprenticeship and
learnership, the contract with handicapped workers must be in writing and must include
the duration of the employment. The salary rate shall not be less than 75% of the
statutory minimum.
In a leading case ,the task of counting and sorting bills ((used to be handled by regular
tellers) was held to be necessary and desirable in bank operations. Thus, the deaf-
mutes hired for these tasks on fixed term basis ( initially , 6 months with 1-month trial
period) and whose services were renewed several times exceeding six (6) months were
deemed regular employees entitled to security of tenure(Bernardo vs NLRC , G.R. No.
122917, 12 July 1999),.
Curiously, and without explaining itself, the Supreme Court ruled that those deaf-mute
sorters whose services did not reach six (6) months were validly terminated. This is
plainly wrong. If they were hired on probationary basis, they have already passed it
since the training period was only one (1) month. And even if they the probationary
period was set at six (6) months, there was no indication that their services were not
renewed because of failure to qualify. Instead, their fixed term contracts were simply
allowed to expire. The non-renewal would constitute illegal dismissal, because the fixed
term contracts cannot stand the judicial test of the giant banking institution and the deaf-
mutes with limited employability having dealt with each other “on more or less equal
terms with no moral dominance whatever being exercised by the former over the latter".
C. Child Workers
No child below 15 years of age shall be employed, except when he works directly
under the sole responsibility of his parents or guardian , and his employment does
not in any way interfere with his schooling (Art. 139 (a) [137], Labor Code). No person
below 18 years old shall be employed in any undertaking which is hazardous or
deleterious in nature as determined by the Secretary of DOLE (Art. 139,b [137], Labor
Code).
Note that the Kasambahay Law provides:
Section 4 (d) Domestic worker or "Kasambahay" refers to any person
engaged in domestic work within an employment relationship such as, but
not limited to, the following: general house help, nursemaid or "yaya",
cook, gardener, or laundry person, but shall exclude any person who
performs domestic work only occasionally or sporadically and not
on an occupational basis.
The term shall not includechildren who are under foster family
arrangement, and are provided access to education and given an
allowance incidental to education,i.e. "baon", transportation, school
projects and school activities.
2
xxx
Section 16. Employment Age of Domestic Workers. – It shall be
unlawful to employ any person below fifteen (15) years of age as a
domestic worker. Employment of working children, as defined under this
Act, shall be subject to the provisionsof Section 10(A), paragraph 2 of
Section 12-A, paragraph 4 of Section 12-D, and Section 13 of Republic
Act No. 7610, as amended, otherwise known as the "Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act".
Discrimination against child workers is deemed an unlawful act ( Art. 138, Labor Code).
D. Kasambahay
Section 4 of the Batas Kasambahaydefines Domestic work as “work performed in or
for a household or households” and Domestic worker or "Kasambahay"as any person
engaged in domestic work within an employment relationship such as, but not limited to,
the following: general househelp, nursemaid or "yaya", cook, gardener, or laundry
person, but shall exclude any person who performs domestic work only occasionally or
sporadically and not on an occupational basis.The Implementing Rules and Regulations
exclude family drivers from the definition, but this is a debatable proposition since
driving for a family is clearly “work performed for a household.”
The term householdis defined as “immediate members of the family or the occupants
of the house that are directly provided services by the domestic worker”.
It is now settled that a house helper or domestic servant working within the premises of
the business of the employer and in relation to or in connection with its business, as in
its staff houses for its guest or even for its officers and employees renders such house
helper or domestic servant a as a regular employee of the business enterprise, and not
mere family househelper or domestic servant of a household (Remington Industrial Sales
Corp. vs Castaneda, GR NO.s. 169295-96, 20 November 2006).
The distinction is important because kasambahays, while now entitled to five (5) day
SIL after one (1) year of service as well as mandatory SSS coverage, have very
limited security of tenure.
The law provides that the employer may terminate the contract before the expiration of
the term except for just causes ( basically the same as those under Art. 297 of the
Labor Code) but the remedy is just “compensation already earned plus the
equivalent of fifteen (15) days work by way of indemnity”. This makes kasambahay
employment virtually one at will . She could be terminated anytime, subject only to 15
days pay. There is no remedy of reinstatement, back wages, or salaries for the
unexpired portion of the contract.
Section 4 of the Batas Kasambahay defines Domestic work as “work performed in or
for a household or households” and Domestic worker or "Kasambahay" as any
person engaged in domestic work within an employment relationship such as, but not
limited to, the following: general house help, nursemaid or "yaya", cook, gardener, or
laundry person, but shall exclude any person who performs domestic work only
occasionally or sporadically and not on an occupational basis. The enumeration is not
exhaustive but merely illustrative.
The Implementing Rules and Regulations exclude family drivers from the definition,
but this is a debatable proposition since driving for a family is clearly “work performed
3
for a household.”The Supreme Court however has upheld the DOLE' interpretation
(Atienza vs Saluta 17 June 2019) "Family drivers" are formerly categorized as domestic
workers under Art. 139 of the Labor Code. The exclusion has negligible practical effect
insofar as security of tenure is concerned. Both the Kasambahay Law and the Civil
Code offer no security of tenure. The employer can dismiss with or without cause
anytime, with or without prior notice, subject only to compensation equivalent to 15 days
salary
E. Women
By virtue of their sex, female workers are entitled to leaves which are not enjoyed by
male workers. These are:
Expanded maternity benefits(105-day paid maternity leave benefit for
everylive childbirth, regardless of the type of delivery.; 60-day paid leave in
case of a miscarriage or an emergency termination of pregnancy (ETP),
including stillbirth; and additional 15-day paid leave to a female
employee, who qualifies as a solo parent under the Solo Parents’ Welfare
Act).
Marital status is not a qualification, and the old 4-delivery limit has been
abolished. While maternity benefits are paid by the SSS ( but payment is
advanced by the employer) , the difference between the maximum SSS
benefits and the employee’s salary is shouldered by the employer.
VAWC Leave (Sec. 43, VAWC Law)- Paid leave of absence up to ten (10)
days in addition to other paid leaves under the Labor Code "Victims"
would refer to "any woman who is [the offender's] wife, former wife, or
against a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child" ( Section 3,
VAWCI ).The period of extension need not be paid, although the absence
would be authorized (and therefore not subject to disciplinary sanction).
The availment of the ten day-leave shall be at the option of the woman
employee, which shall cover the days that she has to attend to medical
and legal concerns. Leaves not availed of are noncumulative and not
convertible to cash. (IRR of VAWCI)
Gynecological Disorder Leave (Magna Carta For Women)-
“Gynecological disorders” refers to disorders that would require
surgical procedures such as, but not limited to, dilatation and curettage
and those involving female reproductive organs such as the vagina,
cervix, uterus, fallopian tubes, ovaries, breast, adnexa and pelvic floor,
as certified by a competent physician. As clarified by the IRR, ]
gynecological surgeries shall also include hysterectomy, ovariectomy,
and mastectomy;
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 fullpay based on her gross monthly compensation “ plus mandatory
allowances” following surgery caused by gynecological disorders.
Special leave benefit is non-cumulative and non-convertible to cash
unless otherwise provided by a CBA.
4
The Labor Code penalizes discrimination against women ( Art. 133, Labor Code) ,
when sex used as the sole basis for different treatment in the terms and conditions of
employment including compensation, promotions, training opportunities and
scholarship grants. Stipulation against marriage, and discrimination or discharge
from employment due to pregnancy, are also outlawed by the Labor Code ( Arts.
134-135).
A termination motivated by the employee having contacted marriage was been deemed
illegal (PT & T vs NLRC, G.R No. 118978, 23 May 1997).A similar conclusion was reached
when the employees married their co-employees , and the company imposed the
sanction of dismissal provided by the company policy ( Star Paper Corp. vs Timbol, GR
No. 164774, 12 April 2006).This is not exactly a female discrimination case, since even
the male employees benefited from the SC’s decision, This is a marital prohibition case.
The Supreme Court held that the policy was unreasonable as the company failed to
prove a legitimate business concern that would justify the discrimination.
A different situation obtained in the case where the employee was suspended
indefinitely for getting pregnant out of wedlock. The company imposed as condition for
reinstatement that she marry her boyfriend. The indefinite suspensionwas held
tantamount to illegal dismissal, as sex between two consenting adults with no
impediment to marry and the consequent pregnancy were deemed not a disgraceful
and immoral conduct.(Capiz-Cadiz vs Bent Hospital and Colleges (GR No. 187417, 24
February 2016), The condition that she marry her boyfriend was held coercive and
oppressive, and violative of the Magna Carta for Women. The remedy for sectarian
institutions with certain religious tenets, as suggested by the Supreme Court , is to craft
an express statement in its manual of personnel policy prescribing such religious
standard as gauge for employee conduct.
The Supreme Court upheld a company policy prohibiting its employees from having a
relationship with employees of competitor companies . The Supreme Court held that a
company has a right to guard its trade secrets, and that the prohibition against personal
or marital relationships with employees of competitor companies is reasonable . It
further reiterated the doctrine that the equal protection clause applies only to the State ,
not to private entities (Duncan Association of Detailmen -PTGWO vs Glaxo WellcomePhil,.
Inc. (GR No, 162994, 17 September 2004). The ruling seems too broad and may result in
unreasonable implementation.
The company policy in Glaxo reads:
10. You agree to disclose to management any existing or future
relationship you may have, either by consanguinity or affinity with co-
employees or employees of competing drug companies. Should it pose
a possible conflict of interest in management discretion, you agree to
resign voluntarily from the Company as a matter of Company policy.
The premise of the policy is “possible conflict of interest”, and the implementation of the
policy would appear unreasonable if the position involved is merely clerical and does
not entail access to trade secrets. The position involved in Glaxo was that of medical
representative, which perhaps may require access to sales strategies. Nonetheless, the
policy still seems too unreasonable unless there is a clear showing of ”conflict of
interest” matter of company policy and not a mere “possibility”. If the position involved is
merely clerical, how could such conflict of interest possibly arise?
The Supreme Court in Glaxo did not consider Art. 134 of the Labor Code, which is
quite categorical in its prohibition:
5
Art,. 134 (136Z). Stipulation Against Marriage. Is shall be unlawful for an
employer to require as a condition of employment or continuation of employment
that a woman employee shall not get married , or to stipulate express or tacitly
that upon getting married, a woman employee shall be deemed resigned or
separated, or to actually dismiss , discharge , discriminate or otherwise
prejudice a woman employee merely by reason of her marriage.
The reason may be is that the employee involved in Glaxo was a male, not a female.
If it was a female employee who was terminated for marrying an employee of a
competitor company, the company may still argue that the termination was not “merely
by reason of her marriage” but because of conflict-of-interest situation. It is my opinion
however that such conflict-of-interest situation must be judged on a case-to-case basis.
Does the anti-marital prohibition applies equally to male employees? There is no valid
distinction between male and females on account of marriage, and I opine that a
company policy prohibiting male employees from marrying under penalty of discharge
( excepting situations like Glaxo ) would also be unreasonable. It can be assailed as
illegal for violating no less than the Constitution, which provides that “marriage , as an
inviolable social institution, is the foundation of the family and shall be protected by the
State” (Art. XV, Section 2).
Termination brought about by pregnancy issues was invalidated in Del Monte Philippines
vs Velasco ( GR No. 153477, 06 March 2007) and Lakpue drug vs Belga ( GR No. 166379,
20 October 2005). Nonetheless, pregnancy does not give the employee the right to
abuse the privilege. In one case, it was held that in the absence of evidence indicating
that any pregnancy-borne illness outside the period stated in the medical certificate,
such illness ought not to be considered as an acceptable excuse for the employee's
excessive absences without leave. The employee's latest string of absenteeism, taken
together with her long history of absenteeism without permission, was deemed a case
of gross and habitual neglect of duties ( Filflex Industrial and Manufacturing Co. vs NLRC,
GR No,. 115395, 12 February 1998).PFFALLARJR FEB21
