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Labor Law And Social Legislation

2015 Pre Bar Review


Day 2
Atty. Peter Joey B. Usita
2

SERVICE INCENTIVE LEAVE


VACATION LEAVE
SICK LEAVE
LEAVES PROVIDED UNDER
SPECIAL LAWS
SERVICE CHARGE
13 MONTH PAY LAW
TH

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
3

What is SERVICE INCENTIVE


LEAVE (SIL)?
SIL is a five-day (5) leave with pay for every
employee who has rendered at least one (1) year
of service

The term at least one (1) year of service means


service for not less than 12 months, whether
continuous or broken.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
4

Is it applicable if employment
contract is less than 12 months?
YES. Where the operation of the establishment as
a matter of practice or policy, or that provided in
the employment contract, is less than 12 months,
such period shall be considered as one year for
the purpose of determining entitlement to the
service incentive leave benefit.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
5

Who are those EXCLUDED from


coverage of SIL?
1.Employees of the government and any of its
political subdivisions, including GOCCs;

2.Domestic helpers and persons in the personal


service of another;

3.Managerial employees as defined in Book Three


of the Labor Code;

4.Field personnel and other employees whose


performance is unsupervised by the employer

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
6

Who are those EXCLUDED from


coverage of SIL?
5.Those who are engaged on task or contract basis,
purely commission basis, or those who are paid a
fixed amount for performing work irrespective of
the time consumed in the performance thereof;

6.Those who are already enjoying the benefit herein


provided;

7.Those enjoying vacation leave with pay of at least


five days; and

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
7

Who are those EXCLUDED from


coverage of SIL?
8.Those employed in establishments regularly
employing less than ten employees.

9.Other officers and members of the managerial


staff

10.Members of the family of the employer who are


dependent on him for support

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
8

Is the rule regarding those who are excluded


from the coverage of SIL ABSOLUTE?
NO. they may be entitled to the same or similar
benefits if so provided under other laws, or
collective bargaining agreement or employment
contract.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
9

How is SIL availed?


The service incentive leave may be used for sick
and vacation leave purposes. At the end of the
year, the unused SIL may be commuted to cash.

Instead of using up SIL, the employee may


accumulate it and opt for its commutation upon
his resignation or separation from employment.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
10

Is SIL applicable to PART-TIME


WORKERS?
Part-time workers are entitled to full five days SIL.

REASON: The Labor Code speaks of number of


months worked in a year, not number of hours
worked in a day, as basis for entitlement.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
11

Application
Autobus vs. Bautista (G.R. No. 156367, May 16,
2005
FACTS: Auto Bus averred that Bautista is a commissioned
employee and that he is also a field personnel hence he
is not entitled to a service incentive leave.
ISSUE NO. 1: Whether or not Bautista is entitled to Service
Incentive Leave.

RULING: Petitioners contention that respondent is not


entitled to the grant of service incentive leave just
because he was paid on purely commission basis is
misplaced. What must be ascertained in order to resolve
the issue of propriety of the grant of service incentive
leave to respondent is whether or not he is a field
personnel.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
12

Is the three (3) year prescriptive period


provided under Article 291 of the Labor Code
applicable? When does it commence?
Applying Article 291 of the Labor Code in light of this peculiarity
of the service incentive leave, we can conclude that the three
(3) year prescriptive period commences, not at the end of
the year when the employee becomes entitled to the
commutation of his service incentive leave, but from the time
when the employer refuses to pay its monetary equivalent after
demand of commutation or upon termination of the
employees services, as the case may be.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
13
What is the DIFFERENCE between
SIL and Vacation Leave?
SIL VACATION LEAVE

Mandatory; legally required Voluntary grant; results from employers


discretionary policy or from CBA

Intended to alleviate the economic Intended to afford the laborer a


condition of the workers for it acts as chance to get a much needed rest to
replacement for regular income that replenish his worn out energies and
would not be earned during such acquire new vitality to enable him to
instance efficiently perform his duties and not
merely to give him additional salary

Cannot be waived Must be demanded in its opportune


time, otherwise, it constitutes a waiver,
the same being a mere concession or
act of grace of employer

Commutable Not commutable


Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
14
Leaves provided under
SPECIAL LAWS:
A.Maternity Leave (under Sec. 14-A of Social
Security Law)
B.Paternity Leave Act of 1996 (Sec.2-10, RA 8187
and Its Implementing Rules)

C.Parental Leave or the Solo Parents Welfare Act of


2000 (RA 8972)

D.Leave for Victims of Violence against Women and


Children (RA 9262)

E.Special Leave Benefit for Women under Sec. 18 of


Magna Carta for Women (RA 9710)

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
15

What is Maternity Leave?


A: Maternity Leave is the period of time which
may be availed of by a woman employee,
married or unmarried, to undergo and recuperate
from
CHILD BIRTH
MISCARRIAGE
COMPLETE ABORTION
during which she is permitted to retain her rights and
benefits flowing from employment

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
16

What are the CONDITIONS to be


entitled to Maternity Leave?
The female member should be employed at the
time of delivery, miscarriage or abortion;

She must give the required notification to the SSS


thru her employer;

Her employer must have paid at least three


months of maternity contributions within the 12-
month period immediately before the semester of
contingency.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
17

What is the AMOUNT?


SSS Maternity Benefit shall be equivalent to one
hundred percent (100%) of pregnant employees
average daily salary credit for sixty (60) days or
seventy- eight (78) days in case of cesarean
delivery.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
18

WHEN is the time of payment?


The full payment of maternity benefits shall be
advanced by the employer within 30 days from
the filing of the maternity leave application.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
19

WHO makes the payment?


The SSS shoulders the payment of maternity
benefits. But the procedure is that the payment is
to be initially advanced by the employer, subject
to immediate reimbursement by SSS.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
20

What are the LIMITATIONS for its


availment?
Maternity benefits are not part of 13th month pay
computation

Entitlement to maternity benefit forecloses


entitlement to sickness benefit

Entitlement to maternity leave under the Labor


Code and maternity benefits under the SSS Law
applies only for the first four deliveries.

Notification to SSS in case of pregnancy

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
21

What is the effect of Failure of


Employer to Remit Contribution?
If the employer fails to remit the required
contributions, or to notify SSS of the time of the
pregnancy, the employer shall pay to the SSS
damages equivalent to the benefits which said
employee member would otherwise have been
entitled to.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
22

What is Paternity Leave?

Paternity leave refers to the benefits granted to a


married male employee in the private and public
sectors allowing him to take a leave for 7 days,
with full pay.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
23

When is an employee entitled to


Paternity Leave?
He is entitled if the following qualifications are
present:
The employee is lawfully married;
He is cohabiting with his legitimate wife;
His wife is pregnant or has delivered a child or suffered
a miscarriage or abortion;
Must be of the first four deliveries;
The employer is notified within reasonable time of the
pregnancy and of date of expected delivery (not
required in case of abortion or miscarriage).
The benefit must be availed of not later than 60 days
after date of delivery.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
24

Is it commutable to CASH?
Paternity leave is NOT commutable to cash if not
availed of.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
25

What are the conditions to be


entitled to Parental Leave?
It can be availed by a solo parent who has
rendered service of at least once (1) year;

The parental leave shall not be more than seven


(7) working days every year;

The purpose is to enable him/her to perform


parental duties and responsibilities where his/her
physical presence is required.

This leave shall be non-cumulative.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
26

What are the conditions to be


entitled to Parental Leave?
It is an additional leave benefit which is separate
and distinct from any other leave benefits
provided under existing laws or agreements

He/she has notified his/her employer of the


availment thereof within a reasonable period of
time; and

He/she has presented a SOLO PARENT


IDENTIFICATION CARD to his/her employer
secured from the City/Municipal Social Welfare
and Development Office.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
27
WHO are considered as Solo
Parent?
Solo Parent is 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

Parent is left solo or alone with the responsibility of parenthood due to the following
circumstances:

a) Death of spouse

b) Spouse is detained or is serving sentence for a criminal conviction for at least one (1) year.

c) Physical and/or other mental incapacity of spouse as certified by a public medical


practitioner.

d) 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

e) 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

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
2. Unmarried mother/father who has preferred to keep and rear 28
her/his child/children instead of having others care for them
or give them up to a welfare institution.

3. Any other person who solely provides parental care and


support to a child or children.

4. 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.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
29

What are the LIMITATIONS of


Parental Leave?
Non-conversion of parental leave

Said leave shall not be convertible to cash unless specifically agreed


upon previously

Crediting of Existing Leave

If there is an existing or similar benefit under a company policy, or a CBA


or collective negotiation agreement, the same shall be credited as
such.

If the same is greater than seven (7) days provided for in the Act, the
greater benefit shall prevail

Emergency or contingency leave provided under a company policy or


collective bargaining agreement shall not be credited as compliance
with the parental leave provided for under the Act and Its Implementing
Rules.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
30

What are the BENEFITS of a


SOLO PARENT?
Benefits

Flexible work schedule

Prohibition against work discrimination

Parental leave be granted to any solo parent employee


who has rendered service of at least one (1) year.

Other benefits under RA 8972

Educational benefits

Housing benefits

Medical assistance

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
31

What are the CONDITIONS to be entitled to


leave for VICTIMS OF VIOLENCE AGAINST
WOMEN & CHILDREN?
Grants to victims a total of ten (10) days of paid
leave of absence, in addition to other paid leaves
under the Labor Code and Civil Service Rules and
Regulations

Its is extendible when the necessity arises

This leave is not convertible to cash

The entitlement shall be at the option of the


woman employee

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
32

What are the CONDITIONS to be entitled


to leave for VICTIMS OF VIOLENCE
AGAINST WOMEN & CHILDREN?
Anytime during the application of any protection
order, investigation, prosecution, and/or trial of
the criminal case

For government employees, she must file an


application for leave citing as basis RA 9262

The administrative enforcement of this leave


entitlement shall be considered within the
jurisdiction of the Regional Director of the DOLE
under Art 129 of the Labor Code for employees in
the private sector, and the Civil Service
Commission for the government employees

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
33

What are the other SPECIAL


LEAVE BENEFIT FOR WOMEN?
It is a special leave benefit granted to a female
employee which has a leave entitlement of two months
with full pay based on her gross monthly compensation
following surgery caused by gynaecological disorders.

This benefit is in addition to leave privileges under


existing law.

Benefit is not convertible to cash

Special leave benefit is non-cumulative and non-


convertible to cash unless otherwise provided by a CBA

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
34

Who are qualified to avail of this


benefit? Conditions?
All women employees in the private sector,
regardless of age and civil status, are entitled to
special leave benefits. Provided they have
complied with the following conditions:

EE has rendered continuous aggregate


employment service of at least 6 months for the
last 12 months;

EE has filed an application for special leave;

EE has undergone surgery due to gynaecological


disorders as certified by a competent physician.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
SERVICE CHARGES
Who are the employees covered?
All employees of covered employers, regardless
of their positions, designations or employment
status, and irrespective of the method by which
their wages are paid
36
WHAT are the establishments
covered?
Applies only to establishments collecting service charges, such as:

Hotels
Restaurants

Lodging houses
Night clubs

Cocktail lounges

Massage clinics
Bars

Casinos and gambling houses


Similar enterprises including entities operating primarily as private
subsidiaries of the government
Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
37

How is service charge distributed?


What is the percentage of sharing?
All service charges collected by covered
employees are required to be distributed at the
following rates:

85% to be distributed equally among the covered


employees; and

15% to management to answer for losses and


breakages and distribution to employees more
than P2,000.00 a month, at the discretion of the
management

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
38

How is service charge distributed?


What is the percentage of sharing?
Tips given by customers do not form part of the
service charges, in such case, it shall be
distributed in accordance with the sharing ratio

Service charges are not in the nature of profit


share and cannot be deducted from wage
In case the service charge is abolished, the share
of covered employees shall be considered
integrated in their wages. The basis of the amount
to be integrated shall be the average monthly
share of each employee for the past 12 months
immediately preceding the abolition or
withdrawal such charges

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
13th Month Pay
40

How is THIRTEENTH MONTH PAY


applied?
13th month pay should not be less than one-
twelfth (1/12) of the basic salary of an employee
within a calendar year

An employer may give his employees (1/2) of the


13th Month Pay before opening of the regular
school year and the other half on or before
December 24 of every year

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
41

Who are the employees


ENTITLED to 13th month pay?
Generally, All Rank-and-file employees, regardless of
their designation or employment status and irrespective
of the method by which their wages are paid, are
entitled to the 13th month pay benefit

Domestic workers or Kasambahay are now covered

Extras, casuals and seasonal employees are entitled to


13th month pay

Employees paid by results

Those with multiple employers

Private school teachers

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
42

Who are the employees


th
EXCLUDED from 13 month pay?
1. The government and any of its political
subdivisions, including GOCCs except those
corporations operating essentially as private
subsidiaries of the government;

2. Employers already paying their employees 13th


month pay or more in a calendar year or its
equivalent at the time of the issuance of the
Revised Guidelines;

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
43

Who are the employees


th
EXCLUDED from 13 month pay?
3. Employers of those who are paid on:

Purely commission

Boundary

Task basis and

Those who are paid a fixed amount for performing a specifics work,
irrespective of the time consumed in the performance thereof.

Except: where the workers are paid on piece-rate basis, in which case,
the employer shall be covered by the Revised Guidelines insofar as such
workers are concerned

Workers paid on piece-rate basis shall refer to those who are paid a
standard amount for every piece or unit of work produced that is more or
less regularly replicated without regard to the time spent in producing the
same.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
44

What is the MINIMUM AMOUNT


of 13th month pay?
The basic salary of an employee for purposes of
computing the 13th month pay should include all
remunerations or earnings paid by the employer
for services rendered during normal working hours

It does not include allowances and monetary


benefits which are not considered or integrated
as part of the regular basic salary such as the
cash equivalent of unused vacation and sick
leave credits, overtime, premium, night
differential, holiday pay and cost of living
allowances.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
45
What is the MINIMUM PERIOD of
service required to be entitled to
such benefit?
To be entitled to the 13th month pay benefit,
there is a minimum service requirement that the
employee should have worked for at least one (1)
month during a calendar year

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
46

Can the 13th month pay be


PRO-RATED?
General Rule: Pro-ration of this benefit applies
only in cases of resignation or separation from
work; computation should be based on length of
service and not on the actual wage earned by
the worker (Honda Philippines Inc. vs. Samahan
ng Malayang Manggagawa sa Honda, G.R. No.
145561, June 15, 2005)
Exception: Employees who are paid a
guaranteed minimum wage or commissions
earned are entitled to 13th month pay based on
total earnings (Philippine Agricultural Commercial
and Industrial Workers Union vs. NLRC, G.R. No.
107994, August 14, 1995)

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
47

SEPARATION PAY
RETIREMENT PAY

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
48

What are the KINDS of


SEPARATION PAY?
1. As the employers statutory obligation in cases of
legal termination due to authorized causes under
Article 297 or 298

2. As financial assistance, as an act of social justice,


even in cases of legal dismissal under Article 296

3. Separation Pay instead of Reinstatement (SPIR) in


illegal dismissal cases where the employee is ordered
reinstated but reinstatement is not feasible

4. As an employment benefit granted in a CBA or


company policy

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
49

What are the AUTHORIZED CAUSES


under Articles 297-298, Labor Code?
1. Installation of labor - saving device

2. Redundancy

3. Retrenchment

4. Closure or cessation or operation of the


establishment or undertaking (Art. 297)

5. Disease (Art. 298)

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
What is the required MINIMUM 50

AMOUNT of Separation Pay?


It varies according to the cause of termination.

Cause Pay
Introduction of labor saving device or Equivalent to whichever is higher of
redundancy either:
1. One-month pay or
2. One-month pay multiplied by the
employees years of service

Retrenchment or closure or cessation Equivalent to whichever is higher of


of operations NOT due to serious either:
business losses and disease under 298 1. One month pay or
2. One-half month pay multiplied by
the employees year of service

Closure or cessation of business due to No separation pay


Note: A fraction of at least 6 months is counted as 1 year.
SERIOUS business losses
Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
51

What is the SALARY BASE used in


computing the Separation Pay?
The salary base includes not just the basic salary
but also the regular allowances that an employee
has been receiving such as transportation and
emergency living allowances.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
52

When is it proper to give separation


pay as financial assistance?
As a general rule, an employee who has been
dismissed for any of the just causes enumerated
under Art. 296 is not entitled to a separation pay.

In exceptional cases, however, the Court has


granted separation pay to a legally dismissed
employee as an act of social justice or on
equitable grounds. In both instances, it is
required that the dismissal (1) was not for serious
misconduct; and (2) did not reflect on the moral
character of the employee. (Manila Water
Company vs. Carlito Del Rosario, G.R. No. 188747,
January 29. 2014)

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
53

Is a voluntarily resigned employee


entitled to a separation pay?
General Rule: NO.

Except: When it is stipulated in the employment


contract or CBA, or is sanctioned or established
employer practice or policy.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
54

What is RETIREMENT?
Retirement is the result of a bilateral act of the
parties, a voluntary agreement between the
employer and the employee whereby the latter,
after reaching a certain age, consents to sever his
or her employment with the former.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
55

ELIGIBILITY: What is the age


required in retirement?
The retirement age is primarily determined by the
existing retirement plan or agreement providing
for retirement benefits.

Absent said agreements, the retirement age is


fixed by law to wit:

1. Compulsory Retirement Age: upon reaching 65


years of age, with at least 5 years of service

2. Optional Retirement Age: upon reaching 60


years of age, with at least 5 years of service, at
the option of the employee

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
56

ELIGIBILITY: What is the retirement age


for underground mine employees?

Compulsory Retirement Age: upon reaching 60 yrs. of age


with at least 5 years of service

Optional Retirement Age: upon 50 yrs. of age, with at least 5


years of service

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
57

ELIGIBILITY: Who are EXCLUDED


from the coverage?
1. Retail, service and agricultural establishments or
operations regularly employing not more than
10 employees; and

2. Government and its political subdivisions,


including GOCCs, if they are covered by the
Civil Service Law and its regulations.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
58

AMOUNT: What is the amount of


retirement pay under R.A. 7641?
A retiree is entitled to a retirement pay equivalent
to at least month salary for every year of
service, a fraction of at least 6 months being
considered as one whole year.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
59

When does R.A. 7641 apply?

R.A. 7641 otherwise known as The Retirement Pay Law,


only applies to a situation where:

1. There is no CBA or other applicable employment


contract providing for retirement benefits for an
employee;

2. There is CBA or other applicable employment


contract providing for retirement benefits for an
employee, but it is below the requirements set by
law.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
60

Is 13th month pay part of


retirement benefits?
YES. A retiree is entitled to a retirement pay equivalent
to at least month salary for every year of service a
fraction of at least 6 months being considered as one
whole year.

Unless, the parties provide for broader inclusions, the


term 1/2 month salary shall mean 22.5 days per year
of service, computed as follows:

1. 15 days plus 1/12 of the 13th month pay; and

2. The cash equivalent of not more than 5 days of


service incentive leaves (Implementing Rules of Retirement
Pay Law, Rule II, Sec. 5.2; Capitol Wireless, Inc. vs. Confessor, G.R. No.
1187174, November 13, 1996)

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
61

Employees who are not entitled to 13th Month Pay


and Service Incentive Leave Pay while still working
should not be paid by the entire 22.5 days but
their retirement pay should be computed on the
sole basis of his salary. (R&E Transport, Inc. vs. Latag,
G.R. No. 155214, February 13, 2004)

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
62

Are workers paid by results


entitled to retirement benefits?
YES. It shall be month salary of employees paid by
results.
For covered workers who are paid by results and do
not have a fixed monthly rate, the basis for
determination of the salary for the 15 days shall be
their average daily salary (ADS) subject to the
provisions of Rule VII-A, Book III of the Rules
Implementing the Labor Code on the payment of
wages of workers who are paid by results. The ADS is
the average salary for the last 12 months reckoned
from the date of their retirement, divided by the
number of actual working days in that particular
period.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
63

Are part-time workers entitled


to retirement benefits?
YES. The retirement pay law applies to private
sector employees who have served the employer
establishment for at least 5 years and reached the
age of 60 (for optional retirement) or 65 (for
compulsory retirement). Its receivers are either full-
time or part-time employees, regular or non-regular.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
64

Is retirement pay TAXABLE?


Retirement benefits received by officials and employees of
private firms under a reasonable private benefit plan
maintained by the employer may be exempt from tax, if the
following requirements are met:

1. The benefit plan must be approved by BIR;

2. The retiring official/employee must have been in the


service of same employer for at least 10 years and is not
less than 50 years of age at the time of retirement; and

3. The retiring official/employee shall not have previously


availed of the privilege under the retirement benefit plan
of the same or another employment.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
65

Q: An employee was made to retire even


before she reached the compulsory
retirement age of 65. Was she in effect
illegally dismissed?
YES.

Retirement is the result of a bilateral act of the parties, a voluntary


agreement between the employer and the employee whereby the
latter, after reaching a certain age, agrees to sever his or her
employment with the former. Article 287, as amended, allows for
optional retirement at the age of at least 60 years old.

Consequently, if the intent to retire is not clearly established or if the


retirement is involuntary, it is to be treated as a discharge.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
66

Women Workers
Employment of Minors
House helpers
Homeworkers
Apprentices & Learners
Persons with Disability (PWD)

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
What are considered as acts of
discrimination against
WOMEN WORKERS?
Article 135, Labor Code:

1. Payment of lesser compensation to a female employee as


against a male employee for work of equal value;
2. Favoring a male employee over a female employee with
respect to promotion, training opportunities study, and
scholarship grants solely on account of their sexes.
What are considered as acts of
discrimination against women
workers?
Magna Carta for Women
1. Any gender-based distinction, exclusion, or restriction which
has the effect or purpose of impairing or nullifying the
recognition, enjoyment, or exercise by womenof human
rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field;
2. Any act or omission 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;
3. A measure or practice of general application that fails to
provide for mechanisms to offset or address sex or gender-
based disadvantages or limitations of women, as a result of
which omen are denied or restricted of their rightsor
women, more than men, are shown to have suffered the
greater adverse effects of those measures or practices.
4. Discrimination compounded by or intersecting with other
grounds, status, or condition, such as ethnicity, age, poverty,
or religion.
Are stipulations against
marriage prohibited?
Yes.
Article 136 of the Labor Code considers as an unlawful act
of the employer to require as a condition for or
continuation of employment that a woman employee shall
not get married or to stipulate expressly or tacitly that upon
getting married, a woman employee [shall be required to
resign or] shall be deemed resigned or separated.
It is likewise an unlawful act of the employer to prejudice a
woman employee merely by reason of her marriage.
Is the rule absolute? No.
Application
Duncan Association, and Tecson vs. Glaxo Wellcome
(G.R No. 162994; September 17, 2004)

The Supreme Court ruled that that dismissal based


on the stipulation prohibiting against personal or
marital relationships with employees of competitor
companies upon its employee in the employment
contract is valid exercise of management
prerogative, and considered reasonable because
relationship of that nature might compromise the
interests of the company. In laying down said
company policy, the employer only aims to protect
its interests against the possibility that a competitor
company will gain access to its secrets and
procedures.
What are considered as prohibited acts of
employer against women workers? Acts that are
penalized

To discharge any woman employed by him


for the purpose of preventing such woman
from enjoying maternity leave, facilities and
other benefits (such as family planning
services and incentives) provided under the
Labor Code
To discharge such woman on account of her
pregnancy, or while on leave or in
confinement due to her pregnancy;
What are considered as prohibited acts of
employer against women workers? Act that
are penalized

To discharge or refuse the admission of such woman


upon returning to her work for fear that she may again
be pregnant;
To require as a condition for or continuation of
employment that a woman employee shall not get
married or to stipulate expressly 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 marriage.
R.A. 7877 or ANTI-SEXUAL
HARASSMENT ACT
There is authority, influence or moral
ascendancy on the part of the offender
(employee, manager, teacher, instructor)
In a work , training or education environment
There is demand or request for any sexual
favor , regardless of whether it is accepted by
the object of the act
Employment Environment (as condition of
employment and he consequences therein,
impairment of employees rights, unhealthy
working environment)
Education/Training Environment(as condition of
giving a passing grade or honors, scholarships,
payment of stipend or other benefits unhealthy
school environment)
Duty of employer or head of office
solidary liability of employer or head of office
Penalty of 1 to 6 months imprisonment, and/or
fine (P10,000 to P20,000)
independent action for damages allowed,
prescription of action (3 years).
What laws govern the
employment of minors?
The Labor Code under Art. 139 and 140 and its
Implementing Rules

R.A. 7610 as amended by R.A. 7658 and R.A. 9231

Department Order 65-04 (Rules and Regulations


Implementing R.A. 9231 amending R.A. 7610 as
amended)
Can children below 15 years
be employed?
Generally, no. No child below fifteen (15) years of
age shall be employed, permitted or suffered to
work in any private or public establishment
However there are exceptions:
No child below fifteen (15) years of age shall be
employed except when
1. When a child works directly under the sole
responsibility of his/her parents or legal guardian and
where only members of his/her family are employed:
Provided, however, That his/her family or employment
neither endangers his/her life, safety, health, and morals,
nor impairs his/her normal development: Provided,
further, That the parent or legal guardian shall provide
the said child with the prescribed primary and/or
secondary education; or
Can children below 15 years
be employed?
2. Where a childs employment or
participation in public entertainment or
information through cinema, theater, radio,
television or other forms of media is
essential: Provided, that the employment
contract is concluded by the childs
parents or legal guardian, with the express
agreement of the child concerned, if
possible, and the approval of the
Department of Labor and Employment:
Provided, further, That the following
requirements in all instances are strictly
complied with:
Can children below 15 years
be employed?
(a) The employer shall ensure the protection, health, safety,
morals and normal development of the child;
(b) The employer shall institute measures to prevent the childs
exploitation and discrimination taking into account the system
and level of remuneration, and the duration and arrangement
of working time; and
c) The employer shall formulate and implement,
subject to the approval and supervision of
competent authorities, a continuing program for
training and skills acquisition of the child.

In the above exceptional cases where any such


child may be employed, the employer shall first
secure, before engaging such child, a work
permit from the Department of Labor and
Employment which shall ensure observance of the
above requirements. (Sec. 2, RA 9231)
Employment does not involve
advertisements or commercials
promoting alcoholic beverages,
intoxicating drinks, tobacco and its
by-products or exhibiting violence;
What is WORK PERMIT?
Refers to the permit secured by the employer,
parent or guardian from the DOLE for any child
below 15 years of age in any work allowed by R.A
9231 (Sec. 3 (j) DO 65-04)

No child is allowed to commence work without a


work permit except as provided in Sec. 13 of R.A
9231 or the hiring of spot extras (Sec. 8 (j) DO
65-04)
Can a child be employed in
non-hazardous work?
Yes, any person of either sex, between 15 and 18
years of age, may be employed in any non-
hazardous work.
What is non-hazardous work or
undertaking?
One where the employee is not exposed to any
risk which constitutes an imminent danger to his
safety and health.
What are the examples of
hazardous workplaces?
The nature of the work exposes the workers to
dangerous environmental elements,
contaminants or work conditions.

Workers are engaged in construction work


logging, fire-fighting, mining quarrying, blasting,
stevedoring, dock work, deep-sea fishing, and
mechanized farming,
What are the examples of
hazardous workplaces?
Workers are engaged in the manufacture or
handling of explosives and other pyrotechnic
products,

Workers are exposed to heavy or power-driven


machinery or equipment, and;

Workers are exposed to power-driven tools.


What are hazardous places
according to R.A. 9231?
It debases, degrades or demeans the intrinsic
worth and dignity of a child as a human being,

Exposes child to physical, emotional and sexual


abuse or is highly stressful psychologically or
prejudicial to morals
What are hazardous places
according to R.A. 9231?
Is performed underground, underwater or at
dangerous heights,

Involves the use of dangerous machiner,


equipment, and tools

Exposes the child to physical danger (balancing,


physical strength or contortion, manual transport
of heavy loads)

Performed in an unhealthy environment


What are hazardous places
according to R.A. 9231?
And exposes the child to hazardous
elements, substances, co-agent or
processes (ionizing, radiation, fire,
flammable substances, noxious
components, extreme temperatures,
noise levels, vibrations)
Performed during difficult conditions
Exposes child to biological agents such
as bacteria, fungi, protozoans,
nematodes and other parasites,
What are hazardous places
according to R.A. 9231?
Involves the manufacturing and handling of
explosives and other pyrotechnic products
What are the hours of work of
a child worker?
A child below fifteen (15) years of age may be
allowed to work for not more than twenty (20)
hours a week. The work shall not be more than
four (4) hours any given day.

A child fifteen (15) years of age but below


eighteen (18) years shall not be allowed for more
than eight (8) hours a day and in no case beyond
forty (40) hours a week.
What are the hours of work of
a child worker?
No child below fifteen (15) years of age shall be
allowed to work between eight o clock in the
evening and six o clock in the morning of the
following day and no child fifteen (15) years of
age but below eighteen (18) shall be allowed to
work between ten o clock in the morning the
following day
What are other prohibited employment for
children?

Employment of children as models in any


advertisement, directly or indirectly, promoting
alcoholic beverages, intoxicating drinks, tobacco
and its by-products, gambling or any form of
violence or pornography.
What are other prohibited
employment for children?
Prohibition against worst forms of child
labor
All forms of slavery is defined in the Anti-
Trafficking in Persons Act 2003, trafficking of
children, debt bondage and serfdom,
compulsory labor, recruitment of children in
armed conflict
Child prostitution ( the use, procuring,
offering or exposing of a child), production
of pornography or pornographic
performances
What are other prohibited
employment for children?
The use, procuring or offering of a child for illegal
or illicit activities including production and
trafficking of dangerous drugs and other
substances prohibited under existing laws
What are other prohibited
employment for children?
Hazardous work (Sec. 3, RA 9231)
What law governs the
employment of HOUSEHELPERS?
Batas Kasambahay Act or R.A. 10361 (signed into
law on January 18, 2013),

Labor Code as amended by R.A. No. 7655 or An


Act Increasing the Minimum Wage of
Househelpers repealed by R.A. 10361), and

Household Service provisions under the Civil


Code
Who is a Domestic Worker or
Kasambahay?
Refers to any person engaged in domestic work
within an employment relatioship 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 terms shall not include children 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.

Domestic workers who are fifteen (15) to


eighteen (18) years old are referred to as working
children
Who is the EMPLOYER?
The employer refers to any person who engages
and controls the services of a domestic worker
and is party to the employment contract.
What are the rights and
privileges of a Kasambahay?
The employer or any member of the
household shall not subject a domestic
worker or kasambahay to any kind of
abuse nor conflict any form of physical
violence or harassment or any act tending
to degrade the dignity of a domestic
worker. (Art. II, Sec.5)
The employer shall provide for the basic
necessities of the domestic worker to
include at least three (3) adequate meals a
day and humane sleeping arrangements
that ensure safety.
The employer shall provide appropriate rest and
assistance to the domestic worker in case of illness
and injuries sustained during service without loss of
benefits.

At no instance shall the employer withdraw or


hold in abeyance the provision of these basic
necessities as punishment or disciplinary action to
the domestic worker. (Art. II, Sec. 6)
What are the rights and
privileges of a Kasambahay?
Respect for the privacy of the domestic
worker shall be guaranteed at all times and
shall extend to all forms of communication
and personal effects. This guarantee
equally recognizes that the domestic
worker is obliged to render satisfactory
service at all times. (Art II, Sec.7)
The employer shall grant the domestic
worker access to outside communication
during free time: Provided, That in case of
emergency, access to communication
shall be granted even during work time.
Should the domestic worker make use of the
employers telephone or other communication
facilities, the costs shall be borne by the domestic
worker, unless such charges are waived by the
employer. (Art II, Sec.8)
The employer shall afford the domestic worker
the opportunity to finish basic education and may
allow access to alternative learning systems and,
as far as practicable, higher education or
technical and vocational training. The employer
shall adjust the work schedule the work schedule
of the domestic worker to allow such access to
education or training without hampering the
services required by the employer. (Art. II, Sec.9)
What are the pre-employment
requirements?
An employment contract must be
executed
An employment contract shall be
executed by and between the domestic
worker and the employer before the
commencement of the service in a
language or dialect understood by both
the domestic worker and the employer. The
domestic worker shall be provided a copy
of the duly signed employment contract
which must include the following:
Duties and responsibilities of the domestic worker;

Period of employment;

Compensation;

Authorized deductions;

Hours of work and proportionate additional payment;

Rest days and allowable leaves;

Board, lodging and medical attention;

Agreements on deployment expenses, if any;

Loan agreement;

Termination of employment; and

Any other lawful condition agreed upon by both parties. (Art. 3, Sec.11)
What are the other requirements?

Prior to the execution of the employment


contract, the employer may require the
following:
Medical certificate or a health certificate
issued by a local government health officer;
Barangay and police officer;
National Bureau of Investigation (NBI)
clearance; and
Duly authenticated birth certificate or if not
available, any other document showing the
age of the domestic worker such as voters
identification card, baptismal record or
passport.
What shall be the terms and
conditions of the employment?
The employer shall safeguard the health and
safety of the domestic worker,

The worker shall be entitled to an aggregate


daily rest period of eight hours per day; and

The worker is entitled to at least twenty-four (24)


consecutive hours of rest in a week (Art IV, Sec 19,
20 and 21)
How will the weekly rest period of a
domestic worker be determined?
The employer and domestic worker shall agree in
writing on the schedule of the weekly rest day of
the domestic worker, provided that the employers
shall respect the preference of the worker as to
the rest day if such is based on religious grounds.
How will the weekly rest period of a
domestic worker be determined?
Nothing shall deprive the domestic worker and
the employer from agreeing to the following:
Offsetting a day of absence with a particular
rest day;
Waiving a particular rest day in return for
equivalent daily rate of pay;
Accumulating rest days not exceeding five (5)
days; or
Other similar arrangements. (Art V, Sec. 21)
What are the other pertinent
terms and conditions?
The domestic worker shall not be assigned to
work in a commercial, industrial enterprise at a
wage rate lower than that provided for
agricultural or non-agricultural workers.
In the event that the domestic worker
temporarily performs a task that is outside the
employers household for the benefit of another
household, any liability that will be incurred by
the domestic worker on account of such
arrangement shall be borne by the original
employer.
In addition, such work performed outside the
household shall entitle the domestic worker
to n additional payment of not less than
the existing minimum wage rate of a
domestic worker.
The employer shall at all times provide the
domestic worker with a copy of the pay slip
containing the amount paid in cash every
day, and indicating all deductions made, if
any. The copies of the pay slip shall be kept
by the employer for three (3) years. (Art IV,
Sec 22, 23 and 25)
What should be the MINIMUM
WAGE of domestic workers?
For those employed in NCR- 2,500/month

For those employed in chartered cities and first


class municipalities- 2,000/month

Those employed in other municipalities- 1,500/


month (Art. IV, Sec.24)
Is a domestic worker entitled
to Service Incentive Leave?
Yes, a domestic worker who has rendered at
least one (1) year of service shall be entitled to an
annual service incentive leave of five (5) days
with pay. Provided, that any unused portion of
said leave shall not be cumulative or carried over
to the succeeding years. Unused leaves shall not
be convertible to cash. (Art. IV, Sec. 29)
What are the social and other
benefits of domestic workers?
A kasambahay who has rendered at least one
(1) month of service shall be covered by the
following benefits:
SSS;
Philhealth;
Pag-IBIG; and
Other benefits provided by law. (Art IV, Sec. 30)
What are the social and other
benefits of domestic workers?
Premium payments or contributions for these
benefits shall be shouldered by the employer.
However, if the domestic worker is receiving a
wage of five thousand pesos (P5,000) and above
per month, the domestic worker shall pay the
proportionate share in the premium payments or
contributions, as provided by law. (Art IV, Sec. 29)
Application
HOUSEHELPER: who is and who is not? Apex Mining Co., Inc. v
National Labor Relations Commission, G.R. No.94951, April
22,1991

The definition of a house helper clearly


contemplates such house helper or domestic
servant who is employed in the employers
home to minister exclusively to the personal
comfort and enjoyment of the employers
family. Such definition covers family drivers,
domestic servants, laundry women, yayas,
gardeners, houseboys and other similar house
helps. The definition cannot be interpreted to
include house help or laundrywomen working
in staff houses of a company, like petitioner
who attends to the needs of the companys
guest and other persons availing of said
facillities.
118

What are the important distinctions between


LEARNERSHIP and APPRENTICESHIP?
As to occupation: non-apprenticeship (semi- skilled) vs.
apprenticeable occupations (highly technical) approved by
Department of Labor and Employment (DOLE)

As to theoretical instructions: optional vs. mandatory


requirement of theoretical instructions

As to competency-based system: required vs. not required


implementation based on TESDA-approved system

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
119

What are the important distinctions between


LEARNERSHIP and APPRENTICESHIP?
As to duration of training: not exceeding 3 months vs. more
than 3 months but not exceeding 6 months practical training

As to qualifications: no qualifications vs. with qualifications (at


least 15 years old (R.A. 7610, am RA 7658), possession of vocational
aptitude and capacity for tests, and possession of ability to
comprehend and follow oral and written instructions) (Article 59,
Labor Code)

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita 4/3/17
SOCIAL WELFARE LEGISLATION
1) SSS Law ( R.A. 8282)
2) GSIS Law ( R.A. 8291)
3) Limited Portability ( R.A. 7699)
Social Security System
R.A. 8282
122

Social Security Benefits


The Social Security Program provides a package of benefits in
the event of death, disability, sickness, maternity, and old age. It
provides replacement for income lost during these
contingencies.

All employees in the private sector are mandatorily covered,


including Domestic Workers.

Benefits: Sickness, Maternity, Disability, Retirement, Death &


Funeral, based on a Schedule of Benefits.

Labor Standards and Social Legislations - Atty. Peter Joey B. Usita Monday, April 3, 17
Is SSS Law valid exercise of
Police Power?
YES
The Social Security Law was enacted pursuant to the policy of
the Republic of the Philippines to develop, establish gradually
and perfect a social security system which shall be suitable to
the needs of the people throughout the Philippines and shall
provide protection to employees against the hazard of
disability, sickness, old age and death. Such enactment is a
legitimate exercise of the police power. It affords protection to
labor, especially to working women and minors, and is in full
accord with constitutional provisions on the promotion of social
justice to insure the well-being and economic security of all
people (Roman Catholic Archbishop of Manila v. Social
Security Commission, G.R. No. L-15045, January 20, 1991)
WHO ARE COVERED BY THE
SSS?
Compulsory Coverage of
Employers
An employer or any person who uses the services of another person in
business, trade industry or any undertaking (Sec. 8(c))

A social, civic, professional, charitable and other non-profit


organizations which hire the services of employees are considered
employers

A foreign government, international organization or its wholly-owned


instrumentality such as embassy in the Philippines, may enter into an
administrative agreement with the SSS for the coverage of its Filipino
employees(Sec.8(j)(4)).
Compulsory Coverage of
Employees
A private employee, whether permanent, temporary or provisional, who
is not over 60 years old (Sec. 9(a))

A domestic worker or kasambahay who has rendered at least one (1)


month of service.

A Filipino seafarer upon the signing of the standard contract of


employment between the seafarer and the manning agency which,
together with the foreign ship owner, act as employers.

An employee of a foreign government, international organization or their


wholly-owned instrumentality based in the Philippines, which entered into
an administrative agreement with the SSS for the coverage of its Filipino
workers (Sec.8(j)(4)).

The parent, spouse or child below 21 years old of the owner of a single
proprietorship business.
Compulsory Coverage of Self-
Employed Members:
A self-employed person, regardless of trade, business or
occupation, with an income of at least P1,000 a month
and not over 60 years old, should register with the SSS.
Included, but not limited to are the following self-
employed persons.
self-employed professionals;
business partners, single proprietors and board
directors;
actors, actresses, directors, scriptwriters and
news reporters who are not under an
employer-employee relationship;
professional athletes, coaches, trainers and
jockeys;
farmers and fisherfolks (Sec. 9-A); and
workers in the informal sector such as cigarette
vendors, watch-your-car boys, hospitality girls,
among others.

Unless otherwise specified, all provisions of the law,


R.A. No. 8282, applicable to covered employees
shall also be applicable to the covered self-
employed persons (Sec. 9-A).
A self-employed person shall be both employee
and employer at the same time (Sec. 8(d)).
Voluntary Coverage
1.Coverage of Separated Members

A member who is separated from employment or ceased to


be self-employed/OFW/non-working spouse and would like
to continue contributing (Sec.11).

2.Coverage of Overseas Filipino Workers (OFWs)

A Filipino recruited in the Philippines by a foreign-based


employer for employment abroad or one who legitimately
entered a foreign country (i.e. tourist, student) and is
eventually employed.
3.Coverage of Non-working Spouses of SSS
members
A person legally married to a currently employed
and actively paying SSS member who devotes full
time in the management of household and family
affairs may be covered on a voluntary basis
provided there is the approval of the working
spouse (Sec. 9(b). The person should never have
been a member of the SSS. The contributions will
be based on 50 percent of the working spouses
last posted monthly salary credit but in no case
shall it be lower than P1,000.
WHAT ARE THE EFFECTS OF
SEPARATION FROM EMPLOYMENT?
Employers contribution on his account ceases at the end of
the month of separation;

Employees obligation to contribute ceases at the end of the


month of separation;

But said employee shall be credited with all contributions


paid on his behalf and entitled to benefits according to the
provisions of this Act; and

He may, however continue to pay the total contributions to


maintain his right to full benefit (Sec. 11).
WHAT ARE THE EFFECTS OF THE INTERRUPTION
OF BUSINESS OR PROFESSIONAL INCOME?
He shall not be required to pay contributions for
that month.

He may, however, be allowed to continue paying


contributions under the same rules applicable to
a separated covered employee member.

No retroactive payment of contributions shall be


allowed other than as prescribed under Sec. 22-A
(Sec. 11-A).
WHO ARE EXCLUDED FROM
THE COVERAGE?
Excluded Employer
Government and any of its political subdivisions,
branches or instrumentalities, including
corporations owned and controlled by the
Government with original charters (Sec. 8(c)).
Excluded Employees
Workers whose employment or service falls under any of
the following circumstances are not covered:
(1) Employment purely casual and not for the purpose of
occupation or business of the employer;
(2) Service performed on or in connection with an alien
vessel by an employee if he is employed when such
vessel is outside the Philippines;
(3) Service performed in the employ of the Philippine
Government or instrumentality or agency thereof;
(4) Service performed in the employ of a foreign
government or international organization, or their
whollyowned instrumentality:
Provided, however, That this exemption notwithstanding,
any foreign government, international organization or
their whollyowned instrumentality employing workers
in the Philippines or employing Filipinos outside of the
Philippines, may enter into an agreement with the
Philippine Government for the inclusion of such
employees in the SSS
except those already covered by their respective civil service
retirement systems: Provided, further, That the terms of such
agreement shall conform with the provisions of this Act on
coverage and amount of payment of contributions and
benefits: Provided, finally, That the provisions of this Act shall be
supplementary to any such agreement; and
5) Such other services performed by temporary and other
employees which may be excluded by regulation of the
Commission. Employees of bona fide independent contractors
shall not be deemed employees of the employer engaging the
services of said contractors (Sec. 8(j)).
WHAT ARE THE BENEFITS
UNDER SSS?
Sickness Benefit
What is the sickness benefit?

The sickness benefit is a daily cash allowance paid for the


number of days a member is unable to work due to sickness or
injury.
How does an SSS member qualify for the sickness benefit?

1. He is unable to work due to sickness or injury and


confined either in a hospital or at home for at least four
(4) days;

2. He has paid at least three months of contribution within


the 12 month period immediately before the semester of
sickness has been paid;

3. When all company sick leaves with pay for the current
year has been used up;

4. The employer has been notified, or if separated, voluntary


or self-employed member, the SSS directly
How much sickness benefit is a member entitled
to receive?

The amount of a members sickness benefit per


day is equivalent to ninety percent (90%) of the
members average daily salary credit.
Maternity Benefit
What is the maternity benefit?

The maternity benefit is a daily cash allowance granted to a female member who
was unable to work due to childbirth or miscarriage.

What are the qualifications for entitlement to the maternity benefit?

1. She has paid at least three (3) monthly contributions within the 12-month period
immediately preceding the semester of her childbirth or miscarriage.

2. She has given the required notification of her pregnancy through her employer,
if employed, or to the SSS if separated, voluntary or self-employed member.

Pregnant women, whether married or unmarried, are entitled to maternity benefits.


Retirement Benefit
What is the retirement benefit?

It is a cash benefit either in a monthly pension or lump


sum paid to a member who can no longer work due to
old age.

Who may qualify for a retirement benefit?

1. A member who is 60 years old, separated from


employment or ceased to be self-employed, and at
least 120 monthly contributions prior to the semester
of retirement.

2. A member who is 65 years old whether employed or


not and has paid at least 120 monthly contributions
prior to the semester of retirement.
For Underground Mineworkers:

1. Has reached the age of 55 years old and is an


underground mineworker for at least 5 years
(either continuous or accumulated) prior to the
semester of retirement but whose actual date of
retirement is not earlier than March 23, 1998;
separated from employment or in the case of
self-employed, has ceased employment, and
has paid at least 120 monthly contributions prior
to the semester of retirement.

2. Has reached the age of 60 years old whether


employed or not.
What are the types of retirement benefits?

They are:

1. The monthly pension, and

2. The lump sum amount.

The monthly pension is a lifetime cash benefit paid to a


retiree who has paid at least 120 monthly contributions
to the SSS prior to the semester of retirement.

The lump sum amount is granted to a retiree who has


not paid the required 120 monthly

contributions. It is equal to the total contributions paid


by the member and by the employer including interest
DISABILITY BENEFIT
What is the New Disability Program?

The new SSS Disability program is a re-designed disability


program that implements the revised manual of disability
assessment. The new program adopts the World Health
Organizations (WHO) definition of disability that states that it
is any restriction or lack (resulting from impairment) of ability
to perform an activity in the manner or within the range
considered normal for a human being.

Who is qualified for disability benefit under the new program?

A member who suffers partial or total disability with at least


one (1) monthly contribution paid to the SSS prior to the
semester of contingency is qualified.
What are some of the permanent partial disabilities?

A complete and permanent loss or use of any of the following


body parts and does not totally prevent a member from
engaging in any gainful occupation.

one thumb one big toe

one index finger one hand

one middle finger one arm

one ring finger one foot

one little finger one leg

hearing of one ear one ear

hearing of both ears both ears

sight of one eye


What are some of the permanent total disabilities?

The following fall under permanent total disability:

1. complete loss of sight of both eyes;

2. loss of two limbs at or above the ankle or wrists;

3. permanent complete paralysis of two limbs;

4. brain injury resulting to incurable imbecility or insanity; and

5. such cases as determined and approved by the SSS.


What are the types of disability benefits?

They are:

1. the monthly pension; and

2. the lump sum amount.

The monthly pension is a cash benefit paid to a


disabled member who has paid at least 36

monthly contributions to the SSS prior to the


semester of disability

The lump sum amount is granted to those who


have not paid the required 36 monthly

contributions
DEATH AND FUNERAL
What is the death benefit?

It is a cash benefit either in monthly pension or lump sum paid to the beneficiaries of
a

deceased member

What are the types of death benefits?

They are:

1. the monthly pension; and

2. the lump sum amount

The monthly pension is granted only to the primary beneficiaries of a deceased


member who had paid 36 monthly contributions before the semester of death.

The lump sum is the amount granted to the primary beneficiaries of a deceased
member who had paid less than 36 monthly contributions before the semester of
death.

The secondary beneficiaries shall be entitled to a lump sum benefit.


What is the funeral grant?

A funeral grant of P20,000 (effective September 1, 2000) is given


to whoever pays the burial expenses of the deceased member
or pensioner (E.O. No. 167, s. 2014).
WHO ARE THE
BENEFICIARIES?
Primary Beneficiaries
The dependent spouse until he or she remarries;

The dependent legitimate, legitimated or legally


adopted, and illegitimate children who are not
yet 21 years of age.

The dependent illegitimate children shall be


entitled to 50% of the share of the legitimate,
legitimated or legally adopted children. However,
in the absence of the dependent legitimate,
legitimated children of the member, his/her
dependent illegitimate children shall be entitled
to 100% of benefits (Sec. 8(k)).
Secondary Beneficiaries
The dependent parents, in the absence of
primary beneficiaries.

Any other person designated by the member as


his/her secondary beneficiary, in the absence of
all the foregoing primary beneficiaries and
dependent parents (Sec. 8(k)).
GSIS LAW (R.A. NO.8291)
Who are covered by the GSIS
Law?
All government personnel, whether
elective or appointive, irrespective of status
of appointment, provided they are receiving
fixed monthly compensation and have not
reached the mandatory retirement age of
65 years, are compulsorily covered as
members of the GSIS and shall be required
to pay contributions (Sec. 2.1, Rule II, IRR of
RA 8291).
May employees who have reached the
retirement age of 65 or more be still covered
by the GSIS Law?
Yes, under the following situations:

1. An elective official who at the time of election to public office


is below 65 years of age and will be 65 years or more at the
end of his term of office, including the period/s of his re-election
to public office thereafter without interruption.

2. Appointive officials who, before reaching the mandatory age


of 65, are appointed to government position by the President
of the Republic of the Philippines and shall remain in
government service at age beyond 65 (Sec. 2.2, Rule II, IRR of
RA 8291).
May a contractual employee
be also covered?
Yes, contractual employees including
casuals and other employees with an
employee-government agency
relationship are also compulsorily
covered, provided they are receiving
fixed monthly compensation and
rendering the required number of
working hours for the month (Sec.
2.3, Rule II, IRR of RA 8291)
Who are excluded from the
coverage?
1. Uniformed personnel of the Armed Forces of the
Philippines (AFP), Philippine National Police (PNP),
Bureau of Fire Protection (BFP) and Bureau of Jail
Management and Penology (BJMP);

2. Barangay and Sanggunian Officials who are not receiving


fixed monthly compensation;

3. Contractual Employees who are not receiving fixed


monthly compensation; and

4. Employees who do not have monthly regular hours of


work and are not receiving fixed monthly compensation
(Sec. 3, Rule II, IRR of RA 8291)
Who are excluded from the
coverage?
In addition, the following are also not covered by the
GSIS:

1. Employees who have separate retirement schemes


under special laws and are therefore covered by
their respective retirement laws, to include members
of the Judiciary, Constitutional Commissions and
other similarly situated government officials

2. Contractual employees who have no employer-


employee relationship with the agencies they serve
(The Labor Code, Azucena, Vol. I, p. 602, 2010
Edition).
What are the classes of
membership?
1. Regular those employed by the government, national or
local, legislative bodies, GOCCs with original charters and
government financial institutions, who are required by law to
remit monthly contributions to GSIS

2. Special constitutional commissioners, members of the


judiciary, including those with equivalent ranks, who are
required by law to remit regular monthly contributions for life
insurance policies to the GSIS in order to answer for their
life insurance benefits defined under RA 8291.
What are the classes of
membership?
3. Active refers to a member of the GSIS, whether regular or
special, who is still in the government service and together
with the government agency to which he belongs, is required
to pay the monthly contribution.

4. Inactive a member who is separated from the service


either by resignation, retirement, disability, dismissal from the
service, retrenchment or, who is deemed retired from the
service under this Act (Sec. 2.4, Rule II, IRR of RA 8291).
Who is an employer and an
employee under this Act?
Employer - The national government, its political
subdivisions, branches, agencies or instrumentalities,
including government-owned or controlled corporations,
and financial institutions with original charters, the
constitutional commissions and the judiciary (Sec. 2 (c),
RA 8291).

Employee or Member Any person, receiving


compensation while in the service of an employer as
defined herein, whether by election or appointment,
irrespective of status of appointment, including barangay
and sanggunian officials (Sec. 2 (d), RA 8291)
When does membership
become effective?
The effective date of membership shall be the
date of the members assumption to duty on his
original appointment or election to public office (Sec. 5,
Rule II, IRR of RA 8291).
How do we compute the time
or years of service?
From the date of original appointment or election

This period includes:

1. Periods of service at different times under one or more


employers;

2. Those performed overseas under the authority of the Republic


of the Philippines; and

3. Those that may be prescribed by the GSIS in coordination


with the Civil Service Commission (Sec. 10 (a), RA 8291).
How do we compute the time
or years of service?
What is the effect of his reinstatement in the service in the
government and subsequent retirement and separation which is
also compensable?

All service credited for retirement, resignation or separation for


which corresponding benefits have been awarded under this
Act or other laws shall be excluded in the computation of
service (Sec. 10, RA 8291).
What is the effect of separation
from service?
A member separated from service shall
continue to be a member, and shall be entitled to
whatever benefits he has qualified to in the event of
any contingency compensable under the GSIS Law
(Sec. 4, RA 8291).
What are the benefits under the
GSIS Law?
1. Separation Benefits
2. Unemployment or Involuntary Separation Benefits
3. Retirement Benefits
4. Permanent Disability Benefits
5. Temporary Total Disability Benefits
6. Survivorship Benefits
7. Funeral Benefits
8. Life Insurance Benefits
9. Loan Grant
GSIS LAW
RETIREMENT BENEFITS
1. He/ she has rendered at least 15 years of
service.

2. He/ she is at least 60 years of age at the time of


retirement; and

3. He/ she is not receiving a monthly pension


benefit from permanent total disability (Sec. 13-
A, RA 8291)

What are the retirement benefit


options?
OPTION 1

Five (5) year lump sum equivalent to 60 months of the


basic monthly pension (BMP), plus an old age pension
benefit equal to the BMP payable for life, upon the
expiration of the 5-year guaranteed period covered by
the lump sum (Sec. 13, RA 8291)
What are the retirement benefit
options?
OPTION 2

A cash payment benefit equivalent to eighteen (18) times


of the BMP plus monthly pension for life payable
immediately (Sec. 13, RA 8291).
Illustration:
X, aged 60, is retiring with a total of 35 years
service. His monthly compensation for the last
three years is as follows:

January 1, 2011 to June 30, 2011 = P15,000.00

July 1, 2011 to December 31, 2011 = P 16,500.00


Illustration:
January 1, 2012 to June 30, 2012 = P 14,000.00

July 1, 2012 to December 31, 2011 = P 16,000.00

January 1, 2013 to June 30, 2013 = P 15,000.00

July 1, 2013 to December 31, 2013 = P 16,000.00


Computation of the Average
Monthly Compensation
AMC = Total compensation received during the last 36
months of service preceding retirement / 36 (Sec. 2(l), RA
8291)

= [(6x15,000) + (6x16,500) + (6x14,500) + (6x16,000) +


(6x15,000) + (6x16,000)] / 36, not to exceed P10,000

= P558,000 / 36, not to exceed P10,000

= P15, 500, not to exceed P10,000

= P10,000.00
Computation of the Revalued
Average Monthly Compensation

RAMC = AMC + P700.00, if the AMC is more than P1,000.00


(Sec. 2(m), RA 8291)

= P10,000 + P700

= P10,700.00
Computation of the Basic
Monthly Pension
BMP = 37.5 x RAMC, if the total service is 15 years of less; OR

= 37.5 x RAMC + 2.5% x RAMC x (Years of Service- 15), if the


total service is more than 15 years

But the BMP should not exceed 90% of the AMC (Sec. 9, RA
8291)
Computation of the Basic
Monthly Pension
BMP = [.375 x P10,700] + [.025 x (35-15) x P10,700], not to
exceed 90% of AMC or P9,000

= P9, 362.50, not to exceed 90% of AMC or P9,000

= P9,000
Computation of the Lump Sum
Lump sum = 60 x BMP

= 60 x P9,000

= P540,000 to be paid at retirement (at age 60) and he will


receive the P9,000 BMP for life after 5 years
Computation of the Cash
Payment
Cash Payment = 18 x BMP

= 18 x P9,000

= P162,000 to be paid at retirement (at age 60) and he will


receive the P9,000 BMP for life immediately
GSIS LAW
DISABILITY BENEFITS
What are the general
conditions for entitlement?
The disability must not be due to the members:

Grave misconduct;

Notorious negligence;

Habitual intoxication; or

Willful intention to kill himself or another (Sec. 15, RA 8291)


What are the different types of
disability under the GSIS Law?

Permanent total disability

Permanent partial disability

Temporary total disability


Who is eligible for permanent
total disability benefits?
Category A

1. He/ she is in the service at the time of


disability; OR
2. If separated from the service, he has
paid at least 36 monthly contributions
within the 5-year period immediately
preceding his/ her disability; or has
paid a total of at least 180 monthly
contributions prior to his/ her disability
(Sec. 16(a), RA 8291)
How much is the disability
benefit under Category A?

Monthly income benefit for life equal to the basic


monthly pension effective from date of disability
(Sec. 16(a), RA 8291)
Who is eligible for permanent
total disability benefit?
Category B

A member who suffers permanent total disability


who does not satisfy conditions (1) and (2) in
Category A but has rendered at least 3 years of
service at the time of his disability (Sec. 16(b), RA
8291)
How much is the disability
benefit under Category B?

Cash payment equivalent to 100% of his average


monthly compensation for each year of service
he paid contributions, but not less than P12,000
(Sec. 16(b), RA 8291)
Which disabilities are
considered permanent total?
Complete loss of sight in both eyes

Loss of two (2) limbs at or above the ankle or wrist

Permanent complete paralysis of two (2) limbs

Brain injury resulting in incurable imbecility or


insanity

Other cases as may be determined by the GSIS


(Sec. 16(d), RA 8291)
Who is eligible for permanent
partial disability benefits?
1. He/ she is in the service at the time of disability;
OR

2. If separated from the service, he has paid at


least 36 monthly contributions within the 5-year
period immediately preceding his/ her
disability; or has paid a total of at least 180
monthly contributions prior to his/ her disability
(Sec. 17(a), RA 8291)
How much is the permanent
partial disability benefit?

Cash payment in accordance with a schedule of


disabilities prescribed by the GSIS (Sec. 17(a), RA
8291)
Which disabilities are considered
permanent partial?
Any finger

Any toe

One arm

One hand

One foot

One leg

One or both ears

Hearing of one or both ears

Sight of one eye

Such other cases as may be determined by the GSIS (Sec. 17(b), RA 8291)
Who is eligible for temporary
total disability benefit?
1. He/ she is in the service at the time of disability;
OR

2. If separated from the service, he has rendered


at least 3 years of service and has paid at least
6 monthly contributions in the 12-month period
immediately preceding his disability (Sec.
18(a), RA 8291)
How much is the temporary
total disability benefit?

75% of his current daily compensation for each day or


fraction thereof not exceeding 120 days in one calendar
year AFTER exhausting all his sick leave credits and
collective bargaining agreement sick leave credits (Sec.
18(a), RA 8291)
GSIS LAW
SURVIVORSHIP BENEFITS
What are the different
survivorship benefits?
A. Survivorship pension consisting of:

1. Basic survivorship pension which is 50% of the


basic monthly pension; and

2. Dependent childrens pension not exceeding


50% of the basic monthly pension (Sec. 20,
Sec. 21(a) (1), RA 8291)
What are the conditions to be complied with before
the beneficiaries can avail of the survivorship
pension?

The deceased was in the service at the time of his death;

If separated from the service, he has rendered at least


three (3) years of service at the time of his death and paid
36 monthly contributions within the five-year period
immediately preceding his death; OR
What are the conditions to be complied with
before the beneficiaries can avail of the
survivorship pension?

If separated from service, he has paid a total of at least


180 monthly contributions prior to his death (Sec. 21(a)(1),
RA 8291)
What are the different
survivorship benefits?
B. Survivorship Pension plus cash payment
equivalent to 100% of his average monthly
compensation for every year of service

Conditions:

a. Employee was in service at the time of his


death; and

b. Has rendered at least 3 years of service (Sec.


21(a)(2), RA 8291)
What are the different
survivorship benefits?
C. Cash payment equivalent to 100% of his average
monthly compensation for each year of service he paid
contributions, but not less than P12,000.00

Conditions:

a. Employee has rendered at least 3 years of service prior


to his death; BUT

b. He failed to qualify under items A and B (Sec. 21(a) (3),


RA 8291)
GSIS LAW
FUNERAL BENEFITS
Who are eligible for funeral
benefits?
An active member

A member who has been separated from the


service, but who may be entitled to future
separation or retirement benefits

A pensioner

A retiree who at the time of his retirement was of


pensionable age (Sec. 23, RA 8291)
How much is the funeral
benefit?

Currently fixed at P20,000.00


(www.gsis.gov.ph)
GSIS LAW
LIFE INSURANCE
Who are required to avail of life
insurance?
Compulsory upon all government employees except
members of the AFP and the PNP (Sec. 24, RA 8291)
Who are the beneficiaries?
1) PRIMARY BENEFICIARY:
includes the legal dependents spouse until he/she remarries
and the dependent children.

2) SECONDARY BENEFICIARY:
includes the dependent parents and subject to the restrictions
on the dependent children, the legitimate descendants.
The Dependents:
1. The legitimate Spouse dependent or support upon the member or
pensioner.

2. The legitimate, legitimated, legally adopted Child including the


illegitimate child who is:

a) Unmarried, not gainfully employed, not over the age of majority OR

b) Is over the age of the majority but incapacitated and incapable of
self0support due to a mental or physical defect acquired- prior to age of
majority

3. Parents dependent upon the member for support.


Limited Portability Law
(Republic Act No. 7699)
What is totalization?
It refers to the process of adding up the periods of
creditable services or contributions under each of
the Systems, SSS or GSIS, for the purpose of
eligibility and computation of benefits (Sec. 2(e),
RA 7699).
What is portability?
It refers to the transfer of funds for the account and
benefit of a worker who transfers from one system
to the other (Sec. 2(b), RA 7699).
Who are covered by the Limited
Portability Law?
All worker-members of the GSIS and/or SSS who transfer
from the public sector to the private sector or vice versa,
or who wish to retain their membership in both Systems
(Sec. 3, RA 7699)
When is totalization
applicable?

If a worker is not qualified for any benefits from both


Systems;

If a worker in the public sector is not qualified for any


benefits from the GSIS; or

If a worker in the private sector is not qualified for any


benefits from the SSS (Sec. 3, Rule V, Rules and
Regulations Implementing R.A. 7699)
How are benefits computed
under RA 7699?

The amount of benefits to be paid by one System shall be in


proportion to the number of contributions actually
remitted to that System (Sec. 4, RA 7699)
What is the effect if a worker is
not qualified after totalization?

The member will get whatever benefits that correspond to


his/ her contributions in either or both Systems (Sec. 4, Rule
V, Rules and Regulations Implementing R.A. 7699 )
What is the effect if a worker qualifies
for benefits in both Systems?

Totalization shall NOT apply (Sec. 5, Rule V, Rules and


Regulations Implementing RA 7699)
What is the effect if a worker
qualifies for benefits in both Systems?
Totalization of service credits is only resorted to when the retiree
does not qualify for benefits in either or both of the Systems. In
case the employee is qualified to receive benefits granted by
the GSIS or the SSS, he cannot avail of the benefits under R.A.
7699 (Gamogamo vs. PNOC Shipping and Transport Corp.,
G.R. No. 141707, May 7, 2002).
What is the effect of overlapping
periods of creditable services?

Overlapping periods of creditable services shall be credited


only ONCE for purposes of totalization (Sec. 3, RA 7699)
Illustration:
Juan dela Cruz worked as a court stenographer for
5 years. Later on, he worked for a private
insurance company for also 5 years or 60 months
for each of the systems. Then, he migrated and
did not continue his contributions to SSS as a
voluntary member.
Illustration:
SSS requires 120 monthly contributions for him to
qualify as a pensioner. He would not qualify for
the GSIS pension since GSIS requires at least 15
years of government service.
Illustration:
With the totalization, he would qualify as a
pensioner at SSS. SSS will give him 50% of the
pension he would have gotten based on the
Average Monthly Salary Credit in the SSS.
Pray Hard and Study Hard! End of Day 2