25:00-30:00

When can an employee start to apply for regularization? After 6 months. Generally, that’s the first question
that you should ask your client if the client will consult to you. You ask your client what is the nature of his
employment. Is the nature of his employment necessary and desirable to the employer’s ordinary course
of business? If it is just a temporary business then the nature of the employment would be a project-based
contractual employee. Why? Because, for example, in the earlier scenario, the employment of the saleslady
and the salesman is preconditioned on the fact that there are unused or semi-used tires to be sold. What if
there would no longer be any semi-used tires to be sold? Then it means that the salesladies or the
salesmen, upon the inception of their employment such employment is subject to the availability of the tires.
That’s the essence of a project employee.

Even if the employee is working for 10 years or 15 years, if upon the inception of his employment he is
already aware that he has been hired only for a certain purpose that is not even related to the ordinary
course of business of the employer or he knows that the purpose will terminate, it has very definite time,
then that employee is just a project-based contractual employee. For example, there is an infamous mall
here in Davao City which used to exploit that scheme (I will not divulge the name), they hire employees and
they made the salesladies or salesmen sign a contract. Then, after 3 to 5 months they ceased to work, and
then they stop to work for only 1 month. They return to that mall and apply again, then they will be given
another 5 months to work. That is an attempt to circumvent the law on regularization.

What if, for example, the contract of all the salesladies and salesmen will expire on the exact same month,
do you think that the mall will still continue to run? No!

I think there is also a famous school here in Davao City that practices such act. But I think the employers
running these businesses must have been ill-advised by their counsels. However, if these employees will
run to NLRC for illegal dismissal, they have a big chance on winning because their work are necessary and
desirable to the ordinary business of the employer. That’s the main test, to determine whether or not the
services rendered by the employee are necessary and desirable. What if all of those project employees,
the contract of those project employees would expire on the same date, would the employer still continue
to run his business? If the employer cannot run his business anymore, then those employees should be
regular employees. Upon the 6 month, the employees can now apply for regularization.

So, question for those who have undergone Labor Standards. Where will you file for regularization? You
file for regularization with the Regional Director of the Deportment of Labor and Employment.
February 6, 2018
Baucan 22:01-33:00

It has to be continuous service in the government. It should not be broken. That’s the main problem. Why? Because the benefits from
the government are higher than the private. It’s not the same as the private wherein even if it is broken you can accumulate them and
do the portability. But if in the government, it has to be continuous. But if you accumulate them with the SSS, that’s where you apply
the portability. If you are not qualified in the GSIS because it’s broken, so you try to add there what is from the GSIS.

Ms. Nash: Sir, do we have a program wherein the person has only availed of 10 years sa GSIS, kulang pa sya ng 5 years.
Let’s say he did not contribute in the SSS. So wala bang possibility na they just add

Atty: There is an exception to the rule, if you are allowed to work more than 65 years of age by the civil service and then you
reached the 15-year service, then you are eligible for retirement benefits. But if you’re not allowed by the civil service to work beyond
the 65 years of age, wala.

Ms. Nash: Ang mga judges sir allowed man sila until 70 yrs.

Sir: We’re not talking about the judges here. Again, the judiciary and the Constitutional Commissions have their own set of
benefits. They are only entitled to life insurance from the GSIS.

I think this topic is interesting to certain persons who might avail of the retirement benefits sooner or later. Anyway, I am discussing
this because later on when you become lawyers you might find this useful.

Next topic, death benefits. Even if you’re years away from retirement, you might be close to death. God forbid!

If it is SSS Law, you refer to it as R.A. 8282. If it is GSIS Law, you refer to it as R.A. 8291.

Section 13 of the SSS Law. SSS death benefits. Death of a member, you pay this to the dependents or the beneficiaries of the
member.

"SEC. 13. Death Benefits. - Upon the death of a member who has paid at least thirty-six (36) monthly contributions prior to the
semester of death, his primary beneficiaries shall be entitled to the monthly pension: Provided, That if he has no primary
beneficiaries, his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to thirty-six (36) times the monthly
pension. If he has not paid the required thirty-six (36) monthly contributions, his primary or secondary beneficiaries shall be entitled
to a lump sum benefit equivalent to the monthly pension times the number of monthly contributions paid to the SSS or twelve (12)
times the monthly pension, whichever is higher.

So it means that if he dies in July 2018, then he should have paid at least 36 monthly contributions on June 2018. If he dies on June
2018, he should have paid at least 36 monthly contributions as of December 2017. So 36 monthly contributions, that is 3 years.

How about the GSIS, the death of a member. Section 21 of the GSIS Law provides:

SEC. 21. Death of a Member. –

(a) Upon the death of a member, the primary beneficiaries shall be entitled to:

(1) survivorship pension: Provided, That the deceased:

(i) was in the service at the time of his death;

It means that if the member was in the service when he died, it does not matter how long he rendered services. The important thing
is he died. So, it means that if he did not pay at least 36 monthly contributions prior to the semester of death in the SSS and then he
became a public employee then he died during government services, portability will not apply because he is already entitled to death
benefits and the GSIS. That is if he was in the service at the time of his death.

(ii) if separated from the service, has at least three (3) years of (creditable) service at the time of his death and has paid thirty-six
(36) monthly contributions within the five-year period immediately preceding his death; or has paid a total of at least one hundred
eighty (180) monthly contributions prior to his death; or

So what does this mean? It means that before he died when he separated from the service, he paid 3 years, he served as a public
employee for 3 years, and then he paid 3 years’ worth of contributions for the GSIS. We are talking about GSIS. After he was separated
from the service, within 5-year period he has to pay the 3 years. So for the 63, 64, 65, he paid it and then he died within the next 5
years. So, he died when he was 67 years of age. By 67 years of age, that is what will apply. It will apply because he has paid 3 years
and rendered 3 years within 5 years prior his death. That’s what it means. So, what is the problem in this scenario? It means that if
he’s already 68 years old, he is no longer considered to have paid 3 years’ worth during the last 5 years because he has paid only for
his 64 and 65. So, probably he just paid 2 years. He was considered to have paid only 2 years’ worth during the last 5 years before
his death. So, the “or” will apply. What is the or? The or is: “or he has paid a total of at least one hundred eighty (180) monthly
contributions prior to his death”. So, it means even if he died more than 5 years during the 3 years when he paid his monthly
contributions, when he already paid 180 monthly contributions prior to his death, his dependents or primary beneficiaries will receive
the survivor’s pension. What is 180 months? That is 15 years.

In the SSS, you only need 3 years. GSIS, you have to render 15 years. So, if the member retired then he died after retirement and he
was not able to complete the 15 years, you determine if he was a private employee. If he was a private employee, then he can get
from the SSS by adding it. For example, he only got 12 years in the government service, so you carry it over to the SSS. If he paid at
least 1 month of contribution the SSS and you add there the 12 years, then the dependents will be entitled to survivor’s pension.
However, the survivor’s pension would only be so small because during the portability you only take into consideration the proportion
of the period of the monthly contributions for the SSS or the creditable services for the GSIS when you are claiming from that system.
So, because your client cannot claim from the GSIS, he can only claim from SSS, the survivor’s pension of the dependents would be
worth, what is the 1 month of service in relation to 12 years of service in the government, so it is very small but that is how portability
will apply. Do you get it class?
January 6, 2018
Baucan 10:41-16:00

What do you mean by contingency? We will discuss this later. Included here is the retirement benefits. Again, this is also common
sense because the GSIS caters, the effect of GSIS is felt more after the public employee is separated from the service. If the public
employee will die, then the widow or the dependents or the beneficiaries will receive the pension. That is felt here in the GSIS. On the
other hand, in the ECC you do not receive pension or your heirs will not receive pension if you die if you were the employee. What
will happen is that the heirs will be paid a certain sum because the death is compensable, because the death is work-related. You do
not receive pension under the ECC, you will only receive a specific sum of money because the cause of death of you client employee
is compensable.

Reporting requirements, not much. But for self-employed person, he is mandated to submit to the SSS reportorial requirements
regarding his name, age, status, average monthly net income, and his dependents within 30 days from the start of his self-employment.
What does this mean? This is basically like what happens to the employers in the private sector. Because in the private sector, under
the SSS, the employer is mandated to submit these reportorial requirements within 30 days from the commencement of the service
of the private employee. However, that does not speak of the coverage. It only speaks of reportorial requirements. If for purposes of
coverage, the employee’s coverage starts from the first day of service. It does not start within 30 days. What is mandated within 30
days is that the employer should register the employee with the SSS.

How about the GSIS?

"SEC. 6. Collection and Remittance of Contributions. - (a) The employer shall report to the GSIS the names of all its employees, their
corresponding employment status, positions, salaries and such other pertinent information, including subsequent changes therein, if
any, as may be required by the GSIS; the employer shall deduct each month from the monthly salary or compensation of each
employee the contribution payable by him in accordance with the schedule prescribed in the rules and regulations implementing this
Act.

These are generally required by the Civil Service. These are also generally required by the COA because sometimes some COA
requirements would require the copy of the list submitted to the GSIS. Also, some Civil Service would require copies of those
documents submitted to the GSIS. So, basically in government service they are generally related. But there is no period prescribed
for the employer agency to submit. Generally, if they do not submit they will not just be held liable to the GSIS, but they will also be
held liable to the COA or the Civil Service or other governmental branches. That is why there is no need for a period.

How about funding. This is so easy. This is where in case there is a contingency, where will the fund for the compensation for the
employee be derived. For the SSS, generally the half is from the employer’s contribution and the other half is from employee’s
contribution. Actual remuneration for employment, including the mandated cost-of-living allowance, as well as the cash value of any
remuneration paid in any medium other than cash except that part of the remuneration in excess of the maximum salary credit.
Basically, these remittances refer to how much will the employer and employee will give. This does not come out in the bar because
you need a table in order to solve this one. For purposes of answering the bar in case it will be asked, how will you define remuneration,
take note that this definition also appears under section 1 of the law.