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AGRARIAN LAW AND SOCIAL retiree because their objective is to provide for

LEGISLATION the retiree’s sustenance and, hopefully, even


comfort, when he no longer has the capability
What is social justice? to earn a livelihood. The liberal approach aims
"Social justice is 'neither communism, nor to achieve the humanitarian purposes of the
despositism, nor atomism nor anarchy,' but the law in order that efficiency, security, and well-
humanization of laws and the equalization of being of government employees may be
social and economic forces by the State so that enhanced. Indeed, retirement laws are liberally
justice in its rational and objectively secular construed and administered in favor of the
conception may at least be approximated. persons intended to be benefited, and all
Social justice means the promotion of the doubts are resolved in favor of the retiree to
welfare of all the people, the adoption by the achieve their humanitarian purpose.”
Government of measures calculated to insure - Construction (GSIS vs. De Leon. G.R. NO.
economic stability of all the component 186560, November 17, 2010)
elements of society, through the maintenance
of a proper economic and social equilibrium in LIMITED PORTABILITY LAW (R.A. 7699)
the inter-relations of the members of the “An Act Instituting Limited Portability Scheme
community, constitutionally, through the in the Social Security Insurance Systems by
adoption of measures legally justifiable, or Totalizing the Workersʹ Creditable Services or
extra-constitutionally, through the exercise of Contributions in each of the Systems”
powers underlying the existence of all
governments on the time-honored principle of Policy of the State: (PIT)
salus populi est suprema lex." Calalang v. • Promotion of workers’ welfare by realizing
Williams, (70 Phil. 726) (Bar Question) their efforts in productive endeavors;
• Improvement of workers’ conditions by
“He who has less in life should have more in providing benefits for their long years of
law.” – Ramon Magsaysay contribution to national economy; and
• Totalization and portability of social security
The promotion of the welfare of all the people, benefits with the view of establishing within a
the adoption by the government of measures reasonable period a unitary social security
calculated to insure economic stability of all the system*
component elements of the society through the
maintenance of proper economic and social Note: it includes contributions paid by the
equilibrium in the interrelation of the members employee or worker on account of the worker’s
in the community, constitutionally through the membership to the system, either the GSIS or
adoption of measures legally justifiable or the SSS.
extra-constitutionally through the exercise of • Totalization – refers to the process of
powers, underlying the exercise of all adding up the periods of creditable services
governments on the time honoured principle of or contributions under each of the systems,
“salus populi est suprema lex.” Dr. Jose P. for purposes of eligibility and computation of
Laurel* benefits.
• Portability – refers to the transfer of funds
The law is geared towards* the concern of labor for the account and benefit of a worker who
because our legislators realized the social and transfers from one system to the other.
economic imbalance between the employer and
employee. Who are the covered workers?
• Philippines is a signatory to the International • Those who transfer employment from public
Labor Organization (ILO) to private sector or vice-versa; or
• Universal Declaration of Human Rights (UNO) • Employed in both private and public sectors.

CONSTRUCTION: All doubts in the RULE I : COVERAGE


implementation and interpretation of different Section 1. These rules and regulations shall
social legislations shall be resolved in favor of apply to all worker‐members of the Government
compensability. Service Insurance System (GSIS) and/or Social
Security System (SSS) who transfer from one
“The inflexible rule in our jurisdiction is that sector to another, and who wish to retain their
social legislation must be liberally construed in membership in both Systems.*
favor of the beneficiaries. Retirement laws, in
particular, are liberally construed in favor of the
The creditable services or contributions in both h) Eligibility – means the worker has satisfied
systems shall be: the requirements for entitlement to the
• CREDITED to their service or contribution benefits provided for under the Act. Benefits
record in each of the systems; and – shall refer to the following:
• TOTALIZED for purposes of old-age, 1. Old‐age benefit
disability, survivorship and other benefits in 2. Disability benefit
case the covered member hoes not qualify for 3. Survivorship benefit
SSS or GSIS benefits in either or both systems 4. Sickness benefit
without totalization. 5. Medicare benefit, provided that the
member shall claim said benefit from the
Note: In case of overlapping periods of System where he was last a member, and
membership, it shall be credited only ONCE for 6. Such other benefits common to both
purposes of totalization. System that may be availed of through
totalization.
Proportionality of Benefits:
• Benefits to be paid by the system shall be in Section 1. The process involved in the prompt
proportion to the number of contributions payment of money benefits to eligible members
ACTUALLY REMITTED to that system. shall be the joint responsibility of the GSIS
and SSS.
Note: All contributions paid by such member
personally, and those that were paid by his RULE V : TOTALIZATION
employers to both systems (SSS and GSIS) Section 1. All creditable services or periods of
shall be considered in the processing of benefits contributions made continuously or in the
which he can claim from either or both systems. aggregate of a worker under either of the
Sectors shall be added up and considered
f) Creditable services – for the public sector, for purposes of eligibility and
the following shall be considered creditable computation of benefits.
services:
• 1.1 All previous services rendered by an Section 2. All services rendered or
official/employee pursuant to an appointment contributions paid by a member personally and
whether permanent, provisional or those that were paid by the employers to either
temporary. System shall be considered in the computation
• 1.2 All previous services rendered by an of benefits, which may be claimed from
official/employee pursuant to a duly either or both Systems. However, the
approved appointment to a position in the amount of benefits to be paid by one
Civil Service with compensation or salary; System shall be in proportion to the
• 1.3 The period during which an services rendered/periods of
official/employee was on authorized sick contributions made to that System.
leave of absence without pay not exceeding
one year; Section 3. Totalization shall apply in the
• 1.4 The period during which an official or following instances:
employee was out of the service as a result a) If a worker is not qualified for any
of illegal termination of his service as finally benefits from both Systems;
decided by the proper authorities; and b) If a worker in the public sector is not
•1.5 All previous services with compensation or qualified for any benefits in the GSIS; or
salary rendered by elective officials. c) If a worker in the private sector is not
qualified for any benefits from the SSS.
g) Period of contribution – for the private
sector, the periods of contribution shall refer For the purpose of computation of benefits,
to the periods during which a person renders totalization shall apply in all cases so that the
services for an employer with compensation contributions made by the worker‐member in
or salary and during which contributions were both Systems shall provide maximum benefits
paid to SSS. For the purpose of this Section, which otherwise will not be available. In no case
a self‐employed person shall be considered shall the contribution be lost or forfeited.
an employee and employer at the same time.
•Section 4. If after totalization the worker‐ each of the system and shall be totalized for
member still does not qualify for any benefit purposes of old-age, disability, survivorship and
listed in Rule III, Section 1 (j), the member other benefits. (Sec. 3, R.A. No. 7699)
will then get whatever benefits The portability provisions of R.A. No. 7699 allow
correspond to his/her contributions in the transfer of funds for the account and
either or both Systems. benefit of the worker who transfers from one
system to another.
Section 5. If a worker qualifies for benefits in This is advantageous to the SSS and GSIS
both Systems, totalization shall not apply. members for purposes of death, disability or
Section 7. Overlapping periods of retirement benefits. In the event the employee
creditable services or contributions in transfers from the private sector to the public
both Systems shall be credited only once for sector, or vice-versa, their creditable
purposes of totalization.* employment services and contributions
are carried over and transferred as well.
If you have satisfied the required years of
service under the GSIS retirement option you
have chosen, you would not be allowed to PATERNITY LEAVE ACT OF 1996 (R.A.
incorporate your contributions to the SSS 8187)
anymore for availment of additional benefits.
In case of death, disability and old age, the PATERNITY LEAVE
periods of creditable services or contributions Refers to the benefits granted to a married
to the SSS and GSIS shall be summed up to male employee allowing him not to report for
entitle you to receive the benefits under either work for seven (7) days* but continues to earn
PD 1146 or RA 8291 (expanded GSIS). the compensation therefor, on the condition
If qualified under RA 8291, all the that his spouse has delivered a child or suffered
benefits shall apply EXCEPT the cash a miscarriage for enabling him to effectively
payment. The reason for this is that the lend support to his wife in her period of
Portability Law or RA 7699 provides that recovery and/or in the nursing of the newly-
only benefits common to both Systems born child.
(GSIS and SSS) shall be paid. Cash
payment is NOT included in the benefits Section 2. Notwithstanding any law, rules and
provided by the SSS. regulations to the contrary, every married male
employee in the private and public sectors shall
54. Under the Limited Portability law, funds be entitled to a paternity leave of seven (7)
from the GSIS and the SSS maybe transferred days with full pay for the first four (4) deliveries
for the benefit of a worker who transfers from of the legitimate spouse with whom he is
one system to the other. For this purpose, cohabiting. The male employee applying for
overlapping periods of membership shall be: paternity leave shall notify his employer of the
a) credited only once. pregnancy of his legitimate spouse and the
b) credited in full. expected date of such delivery.
c) proportionately reduced. For purposes, of this Act, delivery shall include
d) equally divided for the purpose of childbirth or any miscarriage.
totalization. (Bar 2011).
CONDITIONS: (RIRR – Revised Implementing
How are the “portability” provisions of R.A. Rules and Regulations of R.A. No. 8187)
7699 beneficial or advantageous to SSS and SECTION 3. Conditions to entitlement of
GSIS members in terms of their creditable paternity leave benefits.
employment services in the private sector or A married male employee shall be entitled to
the government, as the case may be, for paternity benefits provided that:
purposes of death, disability or retirement? a) he is an employee at the time of delivery
Please explain your answer briefly. (Bar of his child;
Question.) b) he is cohabiting with his spouse at the
time she gives birth or suffers a
Portability provisions of R.A. No. 7699 shall miscarriage.
benefit a covered worker who transfers c) he has applied for paternity leave in
employment from one sector to another or is accordance with Section 4 hereof; and
employed in both sectors, whose creditable d) his wife has given birth or suffered a
services or contributions in both systems miscarriage.
credited to his service or contribution record in
SECTION 4. Application for leave. — The SECTION 9. Crediting of existing benefits. —
married male employees shall apply for Where a male employee is already enjoying the
paternity leave with his employer within a paternity leave benefits by reason of contract,
reasonable period of time from the expected company policy or collective bargaining
date of delivery by the pregnant spouse, or agreement, the following rules shall apply:
within such period as may be provided by
company rules and regulations or by collective a) If the existing paternity leave benefit is
bargaining agreement, provided that prior greater than the benefit herein provided,
application for leave shall not be required in the greater benefit shall prevail;
case of miscarriage. b) If the existing paternity leave is less than
that provided herein, such existing benefit
Note: “Delivery shall include childbirth or any shall be adjusted to the extent of the
miscarriage. Paternity Leave Benefits shall not difference. However, where a contract,
be convertible to cash in case it is not availed company policy or collective bargaining
of. (Not commutable)* [vs. commutation of agreement provides for an emergency or
sentence, RPC] contingency leave without specific
 Unlike maternity leave, paternity leave is provisions on paternity leave, the
not found in the Labor Code. paternity leave as herein provided
 The benefit is availed of not later than 60 shall apply in full.
days after delivery/miscarriage/abortion.
There is a pending Senate Bill of Ramon Bong
 The covered employee is entitled to a Revilla, Jr., legislating that paternity leave be
seven-day leave (BASIC SALARY)* for the extended on ALL deliveries of the wife
first four deliveries/miscarriage of his
lawful spouse. Non conversion to cash: If the employee
does not avail of the paternity leave, this
 BASIC SALARY* means – your REGULAR benefit is not convertible to cash (not
wage, commissions, and allowances commutable) nor is it cumulative (increasing in
INDEPENDENT of compliance with certain quantity)
rules or exertion of additional effort.
Duration of paternity leave: 7 CALENDAR
SECTION 5. Availment. — Paternity leave days with full pay, consisting of basic pay and
benefits shall be granted to the qualified mandatory allowances.
employee after the delivery by his wife, without
prejudice to an employer allowing an employee Limits: This benefit is applicable to the first
to avail of the benefit before or during the four (4) deliveries of the spouse of the
delivery; provided, that the total number of employee with whom he is cohabiting.
days shall not exceed seven (7) days for each
delivery. Conditions (other source)
•G.R…………. Exception…
1. Legally married to, and is cohabiting with,
When Paternity Leave may be Availed of? the woman who delivers the baby;
The paternity benefit may be availed of before, 2. Employee of private or public sector;
during or after delivery, provided the total 3. Only for the first four (4) deliveries of
number of days does not exceed 7 working legitimate spouse with whom he is
days. For example, the employee may take a cohabiting; and
leave of 2 days before delivery, 1 day during 4. Notify his employer of the pregnancy of his
delivery, and another 4 days after delivery. legitimate spouse and the expected date of
However, the benefit must be availed of not such delivery (Sec 2)
later than 60 days after date of delivery.
Penal sanctions:
SECTION 8. Non-diminution clause. — Sec. 5. Any person, corporation, trust, firm,
Nothing in these Rules shall be construed to partnership, association or entity* found
reduce or replace any existing benefits of any violating this Act or the rules and regulations
kind granted under existing laws, decrees, promulgated thereunder shall be punished by a
executive orders, or any contract, agreement or fine not exceeding Twenty-Five thousand Pesos
policy between employer and employee. (PHP25,000.00)* [PHP, PhP, Php, and/or P]
or imprisonment of not less than thirty (30)
days nor more than six (6) months.
their wives cope with the special needs arising
If the violation is committed by a corporation, from taking care of a newborn at home. It is
trust or firm, partnership, association or any related to the legal obligation of the husband to
other entity, the penalty of imprisonment shall take care and support the wife. That kind of
be imposed on the entity’s responsible legal duty does not attach to the unwed father.
officers, including, but not limited to, the It is not strictly speaking discrimination– but a
president, vice-president, chief executive reasonable distinction due to differences in
officer, general manager, managing director or both settings.
partner directly responsible therefor.
Question: Does RA 8187 apply for individuals
 Rep. Edcel Lagman pushes for the working as consultants for a certain company?
amendments of Section 2 of RA 8187 under the It is stipulated in my contract with the employer
House Bill 5544, which is currently pending at that we are not “employees”, but rather
the Committee of Labor and Employment “consultants”. But I do believe that the more
chaired by Rep. Karlo Alexei B. Nograles (1st appropriate term to be used is “contractual”.
District, Davao City). Does the RA 8187 applicable on our condition?

 From 7 days leave with pay to 15 days… Plus Answer: The Paternity Leave is granted to ALL
additional 15 unpaid leave if only to assist your married male employees in the private sector,
wife. regardless of their employment status which
may be probationary, regular, contractual or
Because the law presumes that the project basis. So, yes. It applies to contractual
illegitimate child is under the sole custody of the employees as well.
mother and that the father is not living with the
mother. The rationale is different fro the Question: Paternity leave benefit is granted to
mother who is granted maternity leave because married employees regardless of their length of
regardless of her civil status, a mother who has service to the company? So even if the father is
just given birth needs the same amount of care only on his second month of employment, the
and rest to heal and get well. Husbands are company has to grant him this benefit?
allowed paternity leave so that they can help
their wives cope with the special needs arising Answer: Yes, that’s correct. But the employee
from taking care of a newborn at home. It is must notify the employer of the wife’s
related to the legal obligation of the husband to pregnancy and expected due date to avail of
take care and support the wife. That kind of this benefit.
legal duty does not attach to the unwed father.
It is not strictly speaking discrimination – but a Consultant as a contractual employee vs.
reasonable distinction due to differences in consultant as an independent contractor
both settings.
Consultants are independent contractors, not
Question: This would address only married employees, who are often hired to render
fathers – would be a discrimination against advice or provide specialized service that is not
unmarried fathers to be – what if they prioritize in the ordinary course of the business of the
the well-being of the baby before thinking company. Examples are PR consultants, HR
about the marriage? What if they don’t believe consultants and marketing consultants. Their
in the sanctity of marriage? Or what if the child scope of work is limited by a contract or
has a father who can’t be married again for the agreement, which is why a consultant is often
father has been married once? Females can mistaken for “contractual”.
acquire maternity leave even unwed, why can’t
males do so? Contractual employees are those whose
employment are for a fixed term or period. The
Answer: Because the law presumes that the contract is often renewed after the expiry. The
illegitimate child is under the sole custody of the difference between the two is in the control that
mother and that the father is not living with the the company engaging their services has on
mother. The rationale is different for the them. A consultant performs work using his
mother who is granted maternity leave because own tools, resources, time and methods. The
regardless of her civil status, a mother who has contractual employee usually performs work
just given birth needs the same amount of care following specific instructions of and is subject
and rest to heal and get well. Husbands are to the disciplinary rules of the employer. So, for
allowed paternity leave so that they can help example, if the company prohibits moonlighting
or holding two or more employment, the other agreement where the EMPLOYER allows
contractual employee may be terminated on the employee to avail of the leave before the
this ground, while the consultant is not subject delivery. No contradiction– you just have to
to this restriction unless the terms of his read it in its entirety. One is the general rule,
contract specifically say so. the other is an exception.

What if the employee decides not to take all of We contracted a Service Provider for a certain
the leave days allowed (e.g. he was on position and that employee is under the payroll
paternity leave only for 2 days). Do the 5 of the Service Provider. Where will the
remaining days still apply? contractual personnel file the notification of the
KA KLARO ANA!!! wife’s childbirth, to the Service Provider or to us
where she/ he is assigned? Who will pay for the
Is there any specific document needed for 7 days paternity leave, the Service Provider or
applying paternity leave like maternity leave? us? (the employer service provider of course,
Generally, there is only an application for unless otherwise agreed upon)
paternity leave that must be filed within a
reasonable period of time from the expected Paternity leave is a benefit that the employer
date of delivery, meaning the application must must provide– if the personnel who is about
be made PRIOR to the expected date of delivery to become a father is NOT your employee but
although the paternity leave is to be used after of a service provider then he should notify the
delivery. But you should also check with your service provider who will take note of the
HR or employer if there is an existing company expected due date including the tentative dates
rule on the kind of notice required. In case of of the paternity leave. The paternity leave is not
miscarriage, prior application for paternity leave a cash benefit like the maternity benefit, no
is not required. amount is actually disbursed but the
employee on paternity leave is allowed a
In the revised IRR issued by DOLE on March 13, paid leave. This means, he will not suffer a
1997 they delisted abortion from the coverage salary deduction for not working on those days.
of the paternity leave. How about abortion that But this is a matter appropriate for the
intentionally committed by medical practitioner employer (who is the service provider) to
in order to save the life of the mother out of a consider. The service provider may just have to
certain condition. Can the legal husband avail inform you, as a matter of expediency, of the
of paternity leave, given the situation above? inclusive dates of the paternity leave.
Abortion is not included in the legal
provisions on Paternity Leave. But this does not If the father has already 4 children and there is
mean that the company cannot grant paternity another newly born child, can he avail his
leave as its own policy. The law is a minimum paternity leave if he did not avail it in his first
standard– employers can extend its benefits for born? The first was born 1997 but for any
humanitarian reasons. reason nobody informed or notified him
regarding paternity leave at that time. By the
Is the application mechanics for paternity leave way when was paternity leave became a law?
the same for maternity leave — where SSS pays
them NOT the company (because the company The Paternity leave law was passed in 1996 and
has no leave benefits on its own). took effect in 1997. The wordings of the law is
clear– it only applies to the first 4 deliveries.
The Paternity leave is not a cash out The law does not mention any exceptions, so
benefit unlike the maternity benefit. unless there is an amendment to this law, then
Before the child is born, the father notifies the the reasonable interpretation would be to
employer of the expected due date and the exclude deliveries after the 4th child.
tentative schedule of the paternity leave after
the delivery. Once the child is born, the father Question: What if the birth of my baby falls on
may then use the 7-day leave without suffering national holiday can I still enjoy my 7 days leave
any deduction for his absence. Hence, it is a after the holiday? Or it covers all including
paid leave. It is not convertible to cash if the saturday and sunday in that 7 days paternity
father does not use it. leave ?

As a GENERAL RULE: the paternity leave is Answer: The Paternity leave is 7 calendar
available after the delivery of the child with the days, unless otherwise provided in an existing
EXCEPTION of existing company policy or
CBA or company policy as “working days”. b) The employee is a regular or permanent
(DOLE advisory) employee.
c) The wife has given birth or suffered a
Question: What if may baby was born 7 days miscarriage.
before we got married, would I still be able to d) The employee is lawfully married to his
apply for a paternity leave? wife.

Answer: No, you are not legally qualified for Mans Weto had been an employee had been an
the paternity leave, unless your employer has a employee of Nopolt Assurance Company for the
company policy that allows it. last ten (10) years. His wife of six (6) years died
last year. They had four (4) children. He then
Question: Who will pay for the paternity leave, fell in love with Jovy, his co-employee, and they
company or SSS? got married.

Answer: The paternity leave is not a cash In October this year, Weto’s new wife is
benefit that must be paid in case it is not used expected to give birth to her first child. He has
by the employee. The employer grants it and accordingly filed his application for parternity
pays the employees usual salary as if he leave, conformably with the provisions of the
reported for work at the time he avails of the Paternity Leave Law which took effect in 1996.
paternity leave. The HRD manager of the assurance firm denied
his application, on the ground that Weto had
My husband’s SSS status is still single and has already used up his entitlement under the law.
not been updated yet by their agency. I gave Weto argued that he has a new wife who will
an early birth during the holy week and the 7 be giving birth for the first time, therefore, his
days-should-be-paternity leave is about to end. entitlement to paternity leave benefits would
It is the employer’s obligation (not the SSS) to begin to run anew. Whose contention is correct,
grant paternity leave. Paternity leave is not a Weto of the HRD manager?
monetary or cash benefit but a paid leave,
meaning, your husband can be excused from The contention of Weto is correct. The law
work for up to 7 calendar days and still get paid provides that every married male is entitled to
his salary on those days. But to avail of this a paternity leave of seven (7) days for the first
leave, he must have informed his employer of four (4) deliveries of the legitimate spouse with
your pregnancy and the expected dates of the whom he is cohabiting. The fact that Jovy is his
availment. second wife and that Weto had 4 children with
his first wife is beside the point. The important
Under agency.. janitorial. Etc.. fact is that this is the first child of Jovy with
For as long as he’s an employee of that agency Weto. The law did not distinguish and we
meaning he performs services and receives should therefore not distinguish.
compensation for it, then he is entitled to
paternity leave regardless of the length of his The paternity leave was intended to enable the
employment. husband to effectively lend support to his wife
in her period of recovery and/or in the nursing
41. To avail himself of paternity leave with pay, of the newly born child. (Sec. 3, R.A. No. 8187)
when must the male employee file his To deny Weto this benefit would be to defeat
application for leave? the rationale of the law.
a) Within one week from the expected date Moreover, the case of Weto if a grey area and
of delivery by the wife. the doubt should be resolved in his favor.
b) Not later than one week after his wife’s
delivery or miscarriage Is Jovy entitled to maternity leave benefits?
c) Within a reasonable time from the Yes, Jovy’s maternity benefit is personal to her
expected delivery date of his wife. and she is entitled under the law to avail herself
d) When a physician has already ascertained of the same for the first four times of her
the date the wife will give birth. delivery. (R.A. No. 8282).

43. Which of the following is NOT a requisite for


entitlement to paternity leave?
a) The employee is cohabiting with his wife
when she gave birth or had a miscarriage.
MATERNITY LEAVE aggregate service of at least six months for
A female member is entitled to a daily maternity the last twelve months.
benefit equivalent to 100% of her average daily
salary credit for 60 days or 78 days* in case of Conditions:
caesarean* delivery.  Employee shall notify her employer of her
pregnancy and the probable date of her
Requirements: childbirth, which notice shall be transmitted
 There is childbirth, abortion* or to the SSS;
miscarriage*; and (vs. Paternity leave (no  The payment shall be advanced by the
abortion{G.R.}) employer in two equal installments within 30
 She has paid at least 3 monthly days from the filing of the maternity leave
contributions in the 12-month period application;
immediately preceding the semester of  The payment of daily maternity benefits
her childbirth of miscarriage* (How is this shall be a bar to the recovery of sickness
computed?) benefits for the same compensable period of
60 days for the same childbirth, abortion, or
Checklist for Availment miscarriage, or 78 days in case of caesarean
 The pregnant woman employee must have delivery;
paid at least three monthly contributions  That the maternity benefits provided under
within the 12-month period immediately this Section shall be paid only for the first
preceding the semester of her childbirth or four deliveries or miscarriages.
miscarriage.  That the SSS shall immediately
 She has given the required notification of reimburse the employer of 100% of the
her pregnancy through her employer if amount of maternity benefits advanced to
employed, or to the SSS if separated, the employee by the employer upon
voluntary or self-employed member. receipt of satisfactory proof of such payment
and legality thereof; and
“3-monthly Contribution” Illustration  If an employee should give birth or suffer
abortion or miscarriage without the required
 To avail of maternity benefits, the woman contributions having been remitted for her
employee must have paid at least three by her employer to the SSS, or without the
monthly contributions within the 12-month latter having been previously notified by the
period immediately preceding the semester employer of the time of the pregnancy, the
of her childbirth or miscarriage. employer shall pay to the SSS damages
 A semester refers to two consecutive equivalent to the benefits, which said
quarters ending in the quarter of employee would otherwise have been
contingency; entitled to, and the SSS shall in turn pay
 A quarter refers to three consecutive such amount.
months ending March, June, September or
December. Abortion…
 To illustrate, assume that the projected date
of delivery is March 2010. Reproductive Health Act of 2012…. (3)
 The semester of childbirth would be from Proscription of abortion and management
October 2009 to March 2010. This is called of abortion complications;
the semester of contingency.
 Count 12 months backwards starting from Question: What if 10 days la na maternity
the month immediately before the semester leave? Punishment?
of contingency, which is September 2009.
 Hence, the 12-month period immediately Answer: Penal Provisions under R.A. 8282
preceding the semester of childbirth or (Social Security Law)
miscarriage is from October 2008 to (among others)
September 2009. "(e) Whoever fails or refuses to comply with the
 To avail of the benefits, the employee must provisions of this Act or with the rules and
have paid at least 3 monthly contributions regulations promulgated by the Commission,
during this period. shall be punished by a fine of not less than Five
 Note that this requirement supersedes thousand pesos (P5,000.00) nor more than
Article 133, which requires that the woman Twenty thousand pesos (P20,000.00), or
employees must have rendered an imprisonment for not less than six (6) years and
one (1) day nor more than twelve (12) years,
or both, at the discretion of the court: Provided, Time of payment
That where the violation consists in failure or  The full payment of maternity benefits
refusal to register employees or himself, in case shall be advanced by the employer within
of the covered self-employed or to deduct 30 days from the filing of the maternity
contributions from the employees' leave application.
compensation and remit the same to the SSS,
the penalty shall be a fine of not less Five Who makes the payment
thousand pesos (P5,000.00) nor more than  The SSS shoulders the payment of
Twenty thousand pesos (P20,000.00) and maternity benefits. But the procedure
imprisonment for not less than six (6) years and is that the payment is to be initially
one (1) day nor more than twelve (12) years. advanced by the employer, subject to
immediate reimbursement by SSS.
Maternity Leave under Labor Code  Valid marriage not required
 Maternity Leave  Unlike in paternity leave where valid
 Under Article 133(a) of the Labor Code, marriage is a requisite for availment, the
“Every employer shall grant to any pregnant existence of a valid marriage is not required
woman employees who has rendered an to avail of maternity leave benefits.
aggregate service of at least six months for
the last twelve months, maternity leave of at Limitation on Availment
least two weeks prior to the expected date  Entitlement to maternity leave under the
of delivery and another four weeks after Labor Code and maternity benefits under the
normal delivery or abortion, with full pay SSS Law applies only for the first four
based on her regular or average weekly deliveries.
wages.”
 From the above provision, a qualified Bar to recovery of sickness benefits.
pregnant woman employee shall be entitled  That payment of daily maternity benefits is
maternity leave of at least two weeks prior a bar to the recovery of SSS sickness
to expected date of delivery and another benefits for the same period for which daily
four weeks after normal delivery or abortion. maternity benefits have been received.
That’s a total of six weeks maternity leave.
Effect of Failure of Employer to Remit
(Note: Article 133, particularly provisions Contribution.
pertaining to benefits and procedure for  If the employer fails to remit the required
availment, must give way to Social contributions, or to notify SSS of the time of
Security Act.) the pregnancy, the employer shall pay to the
SSS damages equivalent to the benefits
Leave extension which said employee member would
 Maternity leave may be extended on account otherwise have been entitled to.
of illness arising out of the pregnancy,
delivery, abortion or miscarriage, which Tax Treatment of Maternity Benefit
renders the woman unfit for work.  Maternity benefits advanced by employer to
Extended maternity leave is without employee are excluded from gross income
pay, but may be charged against any and thus exempt from withholding tax.
unused leave credits. Under the National Internal Revenue Code
 Maternity Benefits under SSS Law (NIRC), all “benefits received from or
 A pregnant woman member of SSS who has enjoyed under the Social Security System in
paid at least three monthly contributions in accordance with the provisions of Republic
the twelve-month period immediately Act No. 8282″ shall not be included in gross
preceding the semester of her childbirth or income and shall be exempt from taxation.
miscarriage shall be paid a daily maternity (Section 32 [B][6][e], NIRC)
benefit.
 Amount  AMENDMENTS... EXPANDED MATERNITY
 SSS maternity benefit shall be equivalent to LAW... pending bill... already done with third
100% of the pregnant employee’s average reading before the House of Senate... 100 days
daily salary credit for 60 days, or 78 days in leave with pay, whether normal or caesarean
case of caesarian delivery. delivery…
 Senators voted 19-0 to pass Senate Bill 2982 WHEN DID R.A. 8972 TAKE EFFECT?
also known as the proposed Expanded RA 8972 was signed into law on November 7,
maternity Leave Law of 2015 2000 and took effect on November 28, 2000.
Its implementing rules and regulations (IRR)
 Once enacted into Law SB 2982 will extend was approved in April 2002.
the current 60 days maternity leave for
government employees and 60 to 78 days for WHO ARE CONSIDERED AS SOLO
employees in the private sectors to 100 days PARENT?
regardless of the mode of delivery. Solo Parent is any individual who falls under any
of the following categories:
 Sen. Pia Cayetano, sponsor of the pending 1. A woman who gives birth as a result of
measure, said it aims to provide mothers with rape and other crimes against chastity
adequate transition time to regain their health even without a final conviction of the
and overall wellness as well as to assume their offender, provided that mother keeps
maternal roles before resuming to full-time and raises the child.
work. 2. Parent left solo or alone with the
responsibility of parenthood due to the
 Cayetano, also the chair of the Senate following circumstances:
committee on women, children, family, a) Due to death of spouse.
relations and gender equality, noted that the b) Spouse is detained or is serving
current allowable maternity leave is less than sentence for a criminal conviction for at
the minimum 98 days requirement of the least one (1) year.
International Labor Organization. c) Physical and/or mental incapacity of
spouse as certified by a public medical
 The senator said mothers can also avail of an practitioner.
additional maternity leave of 30 days “without d) Legal separation or de facto separation
pay” provided that the employee gives the head from spouse for at least one (1) year, as
of the agency an early written notice of 45 days long as he/she is entrusted with the
before the end of her ordinary maternity leave. custody of the children.
e) Declaration of nullity or annulment of
 Under SB 2982, employees from the private marriage as decreed by a court or by a
sector availing of the maternity leave period church as long as he/she is entrusted
and benefits will receive not less than two- with the custody of the children.
thirds of their regular monthly wages. f) Due to abandonment of spouse for at
Employers who are operating distressed least one (1) year.
establishments and retail or service
establishments employing not more than ten 3. Unmarried mother/father who has preferred
workers are exempted from giving cash. to keep and rear her/his child/children
instead of having others care for them or
 Employers who pay workers on commission, give them up to a welfare institution.
boundary or task basis and those engaged in 4. Any other person who solely provides
the production, processing, or manufacturing of parental care and support to a child or
products and commodities including agro- children; provided he or she is duly
processing, trading and services with total licensed as a foster parent by the DSWD or
assets of not more than Php 3 million are also duly appointed legal guardian by the court.
exempted. 5. Any family member who assumes the
responsibility of head of family as a
SOLO PARENT WELFARE ACT R.A. 8972 result of the death, abandonment,
disappearance or prolonged absence of
WHAT IS THE SOLO PARENT WELFARE ACT? the parents or solo parent.
RA 8972 or the Solo Parent Welfare Act
provides for benefits and privileges to solo
parents and their children. It aims to develop a CHILDREN
comprehensive package of social development Those living with the solo parent, dependent for
and welfare services for solo parents and their support, unmarried, unemployed and below
children to be carried out by the Department of eighteen (18) years old, or eighteen (18) years
Social Welfare and Development (DSWD), as old and above but is incapable of self-support
the lead agency, various government agencies and/or with physical/mental defect/disability.
including NSO and other related NGOs.
WHAT ARE THE CONDITIONS FOR THE apply for services he/she needs from the
TERMINATION OF THE PRIVILEGES OF A C/MSWD Office or to specific agencies providing
SOLO PARENT? such assistance/services.
A change in the status or circumstances of the WHAT ARE THE REQUIREMENTS IN
parent claiming benefits under this Act, such SECURING A SOLO PARENT ID?
that he/she is no longer left alone with the 1. Barangay certificate residency in the area;
responsibility of parenthood, shall terminate 2. Documents/Evidence that the applicant is
his/her eligibility for benefits such as change in a solo parent (e.g. death certificate of
the status with marriage*, the concerned spouse, declaration of nullity of marriage,
parent is no longer left alone with the medical certificate – if incapacitated); and
responsibility of parenthood, etc. 3. Income Tax Return (ITR) or certification
from the barangay/municipal treasurer.
DOES THE SOLO PARENT ACT APPLY TO
THOSE WHOSE SPOUSE IS ABROAD? WHAT DOCUMENT/PROOF WILL A SOLO
The law did not consider this as one of the PARENT PRESENT IF HE/SHE HAS CHILD
categories of solo parent since the other spouse OR IS DE FACTO SEPARATED FROM
still exercises duties over his/her family. HUSBAND/WIFE?
However, if the other parent is abroad and has A Certificate issued by the Barangay Captain
lost contact with his/her family for a year or indicating the circumstances on one’s being a
more, the other parent who is left with the solo parent.
custody of the family, may be considered as
solo parent, provided proofs are presented to IF A SOLO PARENT FILES THE
qualify as such. APPLICATION, CAN AN ID BE SECURED
RIGHT AWAY?
WHAT IS THE PACKAGE OF SERVICES FOR No. The Social Worker has to complete the
SOLO PARENT? assessment/evaluation of the solo parent
The comprehensive package of situation. The ID will be issued after 30 days
programs/services for solo parents includes from filing. The validity of the ID is one year
livelihood, self-employment and skills and is renewable.
development, employment-related benefits,
psychosocial, educational, health and housing IS PARENTAL LEAVE RETROACTIVE
services. SINCE THE LAW TOOK EFFECT LAST
NOVEMBER 2000?
WHAT ARE THE CRITERIA FOR SUPPORT? No. Parental leave is non-cumulative and can
Any solo parent whose income in the place of be availed only during the current year. Further,
domicile falls below the poverty threshold as set it can only be availed after the issuance of the
by the National Economic and Development Solo Parent ID.
Authority (NEDA) and subject to the
assessment of the DSWD worker in the area IS THE 7-DAY PARENTAL LEAVE IN
shall be eligible for assistance. A Solo Parent ADDITION TO THE EXISTING 3-DAY
can directly inquire from the following agencies SPECIAL LEAVE PRIVILEGE?
to avail of their services: The law clearly indicates that the granting of
1. Health Services (DOH) the 7-day parental leave is on top of the 3-day
2. Educational Services (CHED, TESDA) special leave and other mandatory leave
3. Housing (NHA) benefits.
4. Parental Leave (Employer, DOLE, CSC)
Solo parent whose income is above the CAN A SOLO PARENT APPLY FOR
poverty threshold shall enjoy only such PARENTAL LEAVE FOR ANY CHILD?
limited benefits as flexible work Yes, as long as the child is living with him/her,
schedule, parental leave and others to dependent for support, unmarried, unemployed
be determined by the DSWD. and below eighteen (18) years old, or eighteen
(18) years old and above but is incapable of
WHAT ARE THE STEPS TO AVAIL OF THE self-support and/or with physical/mental
PACKAGE OF SERVICES? defect/disability.
A solo parent shall apply for a Solo Parent
Identification Card (Solo Parent ID) from the
City/Municipal Social Welfare and Development
(C/MSWD) Office. Once the C/MSWD Office
issues the Solo Parent ID, a solo parent can
WHAT ARE THE CONDITIONS FOR What are the criteria for support under RA
GRANTING PARENTAL LEAVE TO SOLO 8972?
PARENTS? 1. Any solo parent whose income in the place
The parental leave of seven (7) days shall be of domicile falls below the poverty
granted to any Solo Parent employee subject to threshold as set by the National Economic
the following conditions: and Development Authority (NEDA) and
1. The solo parent must have rendered subject to the assessment of the DSWD
service for a least one (1) year, whether worker in the area is eligible for
continuous or broken, reckoned at the assistance;
time of the effectivity of the law on 2. That any solo parent whose income is
September 22, 2002, regardless of the above the poverty threshold can enjoy the
employment status. benefits mentioned in Sections 6, 7 and 8
2. The parental leave shall be availed of of RA 8972.
every year and shall not be
convertible to cash. If not availed within Section 6. Flexible Work Schedule. - The
the calendar year, said privilege shall be employer shall provide for a flexible working
forfeited within the same year. schedule for solo parents: Provided, That the
3. The parental leave shall be availed of on a same shall not affect individual and company
continuous or staggered basis, subject to productivity: Provided, further, That any
the approval of the Administrator. In this employer may request exemption from the
regard, the solo parent shall submit the above requirements from the DOLE on certain
application for parental leave at least one meritorious grounds.
(1) week prior to availing the solo parent
leave, except on emergency cases. Section 7. Work Discrimination. - No employer
4. The solo parent employee may avail of shall discriminate against any solo parent
parental leave under any of the following employee with respect to terms and conditions
circumstances: of employment on account of his/her status.
a) Attend to personal milestones of a child
such as birthday, communion, Section 8. Parental Leave. - In addition to
graduation and other similar events; leave privileges under existing laws, parental
b) Perform parental obligations such as leave of not more than seven (7) working days
enrolment and attendance in school every year shall be granted to any solo parent
programs, PTA meetings and the like; employee who has rendered service of at least
c) Attend to medical social, spiritual and one (1) year.
recreational needs of the child;
d) Other similar circumstances necessary What are government agencies required
in the performance of parental duties to provide under RA 8972?
and responsibilities, where physical A comprehensive package of social
presence of the parent is required. development and welfare services for solo
parents and their families will be developed by
5. The head of agency/office concerned may the DSWD, DOH, DECS, CHED, TESDA, DOLE,
determine whether granting of parental NHA and DILG, in coordination with local
leave is proper or may conduct the government units and a nongovernmental
necessary investigation to ascertain if organization with proven track record in
grounds for termination and withdrawal of providing services for solo parents. The DSWD
the privilege exist. must coordinate with concerned agencies the
implementation of the comprehensive package
What are the requirements for the of social development and welfare services for
availment of this leave? solo parents and their families.
The solo parent has:
a) Rendered at least one year of service What are included in this package of
whether continuous or unbroken; services for single parents?
b) Notified the employer within a reasonable The package of services will initially include:
time period; and a) Livelihood development services which
c) Presented a Solo Parent Identification include trainings on livelihood skills, basic
Card to his/her employer (while the ID is business management, value orientation
in process, any proof may be presented) and the provision of seed capital or job
placement.
b) Counseling services which include What if there are already benefits under
individual, peer group or family company policies or provisions of the
counseling. This will focus on the CBA? Can the parental leave still be
resolution of personal relationship and role availed of?
conflicts. Section 20. Non-conversion of Parental
c) Parent effectiveness services which Leave – In the event that the parental leave is
include the provision and expansion of not availed of, said leave shall not be
knowledge and skills of the solo parent on convertible to cash unless specifically agreed
early childhood development, behavior upon previously. However, if said leave were
management, health care, rights and denied an employee as a result of non-
duties of parents and children. Critical compliance with the provisions of these Rules
incidence stress debriefing which includes by an employer, the aforementioned leave may
preventive stress management strategy be used a basis for the computation of
designed to assist solo parents in coping damages. Section 21. Crediting of Existing
with crisis situations and cases of abuse. Leave – If there is an existing or similar benefit
Special projects for individuals in need of under a company policy, or a collective
protection which include temporary bargaining agreement or collective negotiation
shelter, counselling, legal assistance, agreement the same shall be credited as such.
medical care, self-concept or ego-building, If the same is greater than the seven (7) days
crisis management and spiritual provided for in the Act, the greater benefit
enrichment. shall prevail.

What is “flexible work schedule”? If the company already gives leave


It is the right granted to a solo parent employee benefits or there are applicable
to vary arrival and departure time without provisions in the CBA, the question that
affecting the core work hours as defined by the should be resolved is: Are the benefits
employer. Under Section 6 of RA 8972, the similar to or greater than the parental
employer must provide for a flexible working leave under RA 8972? If not, then such
schedule for solo parents: But the flexible work benefits under company policies or CBA
schedule should not affect individual and provisions cannot be credited under
company productivity: Provided, further, That Section 21.
any employer may request exemption from the
above requirements from the DOLE on Question:
meritorious grounds. Companies, in seeking ways to save on costs
and expenses, sometimes refuse to grant the
What about the issue of work solo parent leave. They claim that that there are
discrimination, in terms of job existing or benefits similar to the solo parent
assignments or promotion? leave under company policies. If you are a
Section 7 of RA 8972 provides that employers solo parent working for a company that
must not discriminate against solo parents with refuses to grant the solo parent leave by
respect to terms and conditions of their claiming that Section 21 of the IRR
employment. applies, then you should seek the help of
the Public Assistance and Complaints Unit
What is the so-called single parent leave? of the DOLE. The PACU will help you file a
Section 8 of Republic Act No. 8972 states that complaint and then call you and your employer
“in addition to leave privileges under existing to a mediation/conciliation conference. If
laws, parental leave of not more than seven (7) nothing comes out of the conciliation, the PACU
working days every year shall be granted to any will endorse your complaint to the National
solo parent employee who has rendered service Labor Relations Commission.
of at least one (1) year.” Please take note of the
phrase “in addition to leave privileges under
existing laws.”
A common problem of single parents is upon the birth of a child shall be enjoyed
providing educational opportunities for if the adoptee is below seven (7) years of age
their children. Does RA 8972 have as of the date the child is placed with the
provision on this issue? adoptive parents thru the Pre-Adoptive
The DECS, CHED and TESDA are mandated to Placement Authority by the Department.
provide the following benefits and privileges:
1. Scholarship programs for qualified solo PAID LEAVE OF ABSENCE for Victims of
parents and their children in institutions of Violence Against Women and their
basic, tertiary and technical/skills Children (RA 9262)
education; and
2. Non-formal education programs SECTION 43 Entitle to Leave
appropriate for solo parents and their
children. Victims (physical, sexual or psychological)
under this Act shall be entitled to take a paid
Another problem of single parents is leave of absence up to ten (10) days in addition
housing. What benefits if any are to other paid leaves under the Labor Code and
provided under RA 8972? Civil Service Rules and Regulations,
Solo parents shall be given allocation in housing extendable when the necessity arises as
projects and shall be provided with liberal terms specified in the protection order.
of payment on said government low-cost
housing projects in accordance with housing Any employer who shall prejudice the right
law provisions prioritizing applicants below the of the person under this section shall be
poverty line as declared by the NEDA. penalized in accordance with the provisions of
the Labor Code and Civil Service Rules and
What about medical assistance? Regulations. Likewise, an employer who shall
The DOH shall develop a comprehensive health prejudice any person for assisting a co-
care program for solo parents and their employee who is a victim under this Act shall
children. The program shall be implemented by likewise be liable for discrimination.
the DOH through their retained hospitals and
medical centers and the local government units The leave is non-cumulative and not
(LGUs) through their provincial/district/city/ convertible to cash (not commutable) if unused.
municipal hospitals and rural health units
(RHUs). Conditions for Entitlement to Leave for Victims
of Violence Against Women and their Children
How do I avail of the benefits under RA
8972? The following conditions must be complied
You can communicate with the DSWD office of with:
your town or city as to the requirements.
a. The employee must present a
DOMESTIC ADOPTION (R.A. 8552) Certification from the Punong
Barangay/Kagawad, prosecutor or the
Sec. 12 Supervised Trial Custody xxx Clerk of Court, as the case may be, that
a case for violence against women and
If the child is below seven (7) years of age and their children is pending;
is placed with the prospective adopter(s)
through a pre-adoption placement authority An employer who denies the application for
issued by the Department, the prospective Battered Woman Leave (BWL) or who prejudice
adopter(s) shall enjoy all the benefits to which any person assisting the woman employee may
biological parent(s) is entitled from the date the be held liable for discrimination and violation of
adoptee is placed with the prospective RA 9262 or its IRR.
adopter(s).
Enforcement of the entitlement to the BWL
IRR of RA 8552 falls within the jurisdiction of the DOLE Regional
Director under Article 129 of the Labor Code.
Sec 34. Benefits. The adoptive parents shall,
with respect to the adopted child, enjoy all the
benefits to which biological parents are entitled.
Maternity and paternity benefits and
other benefits given to biological parents
SERVICE INCENTIVE LEAVE (Art 95, As to PIECE-RATE WORKERS, they are
Labor Code) divided into two:

Concept of Service Incentive Leave (SIL): 1. Piece-rate workers working inside the
- Five (5) days leave with pay for every premises of the employer and thus are
employee who has rendered at least one (1) under the direct supervision of the
year of service. employer are entitled to SIL;
2. Piece-rate workers working outside the
One (1) Year of Service understood: premises of the employer whose hours
Service within 12 months, whether spent in the performance of their work
continuous or broken, reckoned from the date cannot be ascertained with reasonable
the employee started working including certainty and thus are not under the
authorized absences and paid regular holidays direct supervision of the employer are
unless the number of working days in the not entitled to SIL (Labor Congress of
establishment, as a matter of practice or policy the Philippines vs. NLRC).
or as provided in the employment contract, is
less than 12 months. Conversion to Monetary Equivalent
e.g. January to December SIL is COMMUTABLE, i.e. convertible to cash
if not used or exhausted at the end of the year.
The cash equivalent is aimed primarily at
SIL does NOT apply to the following: encouraging the workers to work continuously
and with dedication to the company.
1. Government Employees;
2. Managerial employees as defined in Book 3; Exception. A domestic worker who has
3. Field personnel whose performance is rendered at least one (1) year of service shall
unsupervised or those who are paid at a be entitled to an annual service incentive leave
fixed amount for performing work of five (5) days with pay. Provided, that any
irrespective of the time consumed in the unused portion of said annual leave shall not be
performance thereof; cumulative or carried over to the succeeding
4. Those already enjoying Vacation leave with years. Unused leaves shall not be convertible to
pay for at least five days; cash (Sec. 29, RA 10361)
5. Those already enjoying said Benefits; and
6. Those employed in establishments regularly Note: Basis of conversion shall be the salary
employing less than ten (10) employees rate at the date of commutation. The availment
(Sec 1, Rule V, Book III, Rules Implementing and commutation of the SIL benefit may be on
the Labor Code) a pro-rata basis (No. VI (C), DOLE Handbook
on Workers’ Statutory Benefit).
Note: Employees engaged on task or contract
basis or paid on purely commission basis are An employee, who is illegally dismissed, is
not automatically exempted from the grant entitled to SIL benefits computed one year
of service incentives leave unless they fall under from the date she started working until
the classification of field personnel. The phrase the date of her actual reinstatement
“other employees whose performance is (Imbuido vs. NLRC, GR No. 114734,
unsupervised by the employer”, in Section 1(D) March 31, 2000) (vs. what usually
Rule V, Book III of the IRR of the Labor Code, happens…)
serves as an amplification of the definition of
field personnel under the Labor Code. (Auto Art. 291 of the Labor Code is not a
Bus Transport Systems, Inc. vs. Bautista, GR prescription of a period time for the
No. 156367, May 16, 2005). computation of money claims but is a
prescription of filling an action upon monetary
PART-TIME WORKERS are entitled to the full claims from the time the cause of action
benefit of the yearly 5-day SIL. The reason is accrued. The employee may use his SIL
that the previous provisions of Art. 95 speak of benefits as leave days or he may collect its
the number of months in a year (Question) for monetary value. To limit the award to three
entitlement to said benefit (Bureau of Working years is to unduly restrict such right.
Conditions Advisory Opinion to Phil. Integrated (Fernandez vs. NLRC, GR No. 105892,
Exporters, Inc.) January 28, 1998).
It can be conscientiously deduced that the duties and not merely to
cause of action of an entitled employee to claim give him additional salary
his service incentive leave pay accrues from the Cannot be waived Must be demanded in its
moment the employer refuses to remunerate its opportune time,
monetary equivalent if the employee did not otherwise, silence would
make use of said leave credits but instead equate to waiver, same
choose to avail of its commutation. Accordingly, being a mere concession
if the employee wishes to accumulate his leave or act of grace of the
credits and opts for its commutation upon his employer
resignation or separation from employment, his Commutable Not commutable
cause of action to claim the whole amount of
his accumulated service incentive leave shall
arise when the employer fails to pay such 13th Month Pay Law
amount at the time of his resignation or (P.D. 851)
separation from employment. (Autobus
Transport System Inc. vs. Bautista, GR Definition of Terms
No. 156367, May 16, 2005)  13th Month Pay – NOT less than one twelfth
(1/12) of the basic salary of an employee
Employees with Salaries above minimum within a calendar year.
wage
The difference between the minimum wage  BASIC SALARY
and the actual salary received by the employees All remunerations or earnings paid by an
cannot be deemed as their 13th month pay and employer to an employee for services rendered
service incentive leave pay as such difference is but may not include:
not equivalent to or of the same import as the
said benefits contemplated by law (JPL  Cost-of-living allowances;
Marketing Promotions vs. Court of Appeals, GR  Profit-sharing payments;
No. 151966, July 8, 2005). (naikalusot an  All allowances and monetary benefits which
employer! Since I paid my employees more are not considered on integrated as part of
than the minimum wage, I should not be made the regular or basic salary of the employee at
to pay them their 13th month pay, SIL, and the time of the promulgation of the Decree
other alleged benefits. Ano ka, masaya? FTS!) on December 16, 1975 (San Miguel
Corporation vs. Inciong, [1981]);
Vacation and Sick Leave  Commissions, if it is not an integral part of
Not statutorily required, a matter of the basic salary (Philippine Duplicators, Inc.
MANAGEMENT DISCRETION or a product vs. NLRC. [1995]).
of collective bargaining agreement.
 Note: Overtime earnings and those not part
General Rule: Benefits are non-cumulative of the basic salary are not included in
and non-commutative; must be enjoyed by the computing thirteenth month pay.
employee within one (1) year, otherwise, they (Supplemental Rules and Regulations
are considered waived or forfeited. Implementing PD 851)

Exception: When the labor contract or the  However, these salary-related benefits (i.e.
established practice of the employer provides cash equivalent of unused vacation and sick
otherwise. leave credits, overtime, premium, night shift
differential and holiday pay) should be
SIL Vacation/Sick Leave included in the computation of the 13th month
Mandatory, legally Voluntary grant results pay if by individual or collective
required under Art. 95, LC from employer’s agreement, company practice or policy,
discretionary policy or the same are treated as part of the basic
from CBA salary of the employees.
Intended to alleviate the Intended to afford a
economic condition of the labourer a chance to get a  SALESMEN’S COMMISSION, comprising a
workers for it acts as much needed rest to pre-determined percent of the selling price
replacement for regular replenish his worn out of the goods by each salesmen are included
income that would not be energies and acquire new in the term “basic salary” for purposes of
earned during such vitality to enable him to computing the 13th month pay (Philippine
instance efficiently perform his Suplicators, Inc. vs. NLRC [1995]).
covered by this issuance insofar as
 However, COMMISSIONS OF MEDICAL such workers are concerned.
REPRESENTATIVES do not form part of “basic
salary” and are not included in the Note: “Its equivalent” includes;
computation of the 13th month pay. Medical  Christmas bonus;
representatives are not salesmen because  Midyear bonus;
they do not effect any sale of article at all;  Profit-sharing payments; and
additional payments received partake of the  Other cash bonuses not less than one
nature of profit-sharing bonuses (Boie- twelfth (1/12) of the basic salary.
Takeda Chemicals, Inc. vs. Dela Serna,
[1993]). Note further: Workers paid on PIECE-RATE
BASIS refer to those who are paid a standard
amount for every piece or unit of work
COVERAGE produced that is more or less regularly
A. Employers (sec. 3) replicated without regard to the time spent in
producing the same.
 General Rule: All employers are covered by
this Act. Piece-rate workers are classified into:
 Exception:
1. Distressed employers such as: Piece-rate workers working inside the work
premises of the employer and are under the
 Those which are currently incurring direct supervision of the employer, thus entitled
substantial losses; or to 13th month pay; and
 In the case of non-profit institutions
and organizations, where their income Piece-rate workers who work outside the work
has consistently declined by more than premises of the employer whose hours spent in
forty percent (40%) of their normal the performance of their work cannot be
income for the last two years. ascertained with reasonable certainty and are
not under the direct supervision of the
2. The Government and any of its political employer thus NOT entitled to 13th month pay
subdivisions, including GOCCs except (Labor Congress of the Philippines vs. NLRC)
those corporations operating essentially
as private subsidiaries of the B. Employees
Government;
General Rule: All RANK-AND-FILE employees
3. Employers already paying their regardless of the amount of basic salary that
employees 13th month pay or more in a they receive in a month, if their employers are
calendar year or its equivalent at the time not otherwise exempted from paying the 13th
of this issuance. month pay. Such employees are entitled to the
13th month pay regardless of their designation
4. (FORMERLY) Employers of Household or employment status, and irrespective of the
helpers and persons in the personal method by which their wages are paid,
service of another in relation to such PROVIDED that they have worked for at
workers; (REPEALED by the latest RA least one (1) month during a calendar
10361 or the Domestic Workers Act or year (Revised Guidelines on the
Batas Kasambahay) Implementation of the 13th Month Pay Law).
(SEC 25 of RA 10361; Payment of Wages. – xxx The
domestic worker is entitled to a thirteen month pay as Exceptions:
provided for by law.)  Employees paid purely on commission basis
 Employees already receiving 13th month pay
5. Employers of those who are paid on:  Government employees
- Purely commission basis;
- Boundary basis;  Note: Part-time employees are entitled to 13th
- Task basis; or month pay.
- A fixed amount for performing a
specific work, except where the  Managerial employees may receive 13th
workers are paid on piece-rate basis in month pay if such payment has been a
which case the employer shall be company practice.
Time of payment  Dismissed from work due to just cause (as
a rule)
Shall be paid not later than December 24 of
each year. An employer, however, may give to WHEN TO RETIRE:
his employees one half (1/2) of the required 1. Upon reaching the retirement age
13th month pay before the opening of the established in the CBA or any other
regular school year and the other half on or employment contract.
before December 24 of every year. The
frequency of payment may be subject to Retirement Benefits – as he may have
agreement between the employer and the earned under existing laws and any CBA
collective bargaining agent of the employees. and other agreements, provided that:
 It shall not be less than those
Non-Inclusion in Regular Wage prescribed by the Retirement Pay Law;
and
The benefits granted under this issuance  If such benefits are less, the employer
shall not be credited as part of the regular wage shall pay the difference between the
of the employees for purposes of determining amount due under the Retirement Pay
overtime and premium pay, fringe benefits, as Law and that provided under the CBA
well as premium contributions to the State or retirement plan.
Insurance Fund., social security, Medicare and
private welfare and retirement plans. (separate 2. In the absence of retirement plan or CBA
and distinct monetary consideration) regarding retirement, employee upon
reaching the age of 60 years or more and
has served at least 5 years in the said
Rules on Certain Types of Employees establishment. (Optional Retirement)
 Retirement benefits – equivalent to at
1. Employees paid by results least ½ month salary for every year of
service; a fraction of at least 6 months
Employees paid on piece work basis (working being considered as one whole year.
inside and under the employer’s direct
supervision) are by law entitled to the 13th  Note: Unless parties provide for
month pay. broader inclusions, the term “1/2
MONTH SALARY” shall mean 15 days +
Employees paid a fixed or guaranteed wage 2.5 days representing one-twelfth
plus commission (pre-determined) are also (1/12) of the 13th month pay and the
entitled to the mandated 13 th month pay, cash equivalent of not more than five
based on their total earnings during the (5) days of service incentive leaves, or
calendar year, i.e. on both their fixed or a total of 22.5 days for every year of
guaranteed wage and commission. service.

3. Upon reaching the age of 65. (Compulsory


RETIREMENT PAY LAW (R.A. 7641) Retirement)
Amending Art. 287 of the Labor Code

COVERAGE: RETIREMENT PLAN VIS-À-VIS


 All employees in the private sector; RETIREMENT PAY LAW
 Part-time employees;  A retirement plan in a company partakes
 Employees of service and other job of the nature of a contract, with the
contractors; and EMPLOYER AND THE EMPLOYEE AS THE
 Domestic helpers or persons in the CONTRACTING PARTIES. R.A. No. 7641
personal service of another. only applies in a situation where:
 There is no CBA or other applicable
Note: The law does not cover employees of: employment contract providing for
 Retail, service and agricultural retirement benefits for an employee, or
establishments or operations employing  There is a CBA or other applicable
not more than ten (10) employees; and employment contract providing for
 Government and its political subdivisions, retirement benefits for an employee, but it
including GOCCs, if they are covered by is below the requirement set for by law.
the Civil Service Law and its regulations.
Even if the company does not include 13th harassment as herein defined (principal by
month pay and service incentive leave as part induction), or who cooperates in the
of the salary base, R.A. 7641 DOES NOT APPLY commission thereof by another, without
WHERE THE EMPLOYEE RECEIVES A LUMP which it would not have been committed
SUM OF 1 ½ month’s pay per year of service. (principal by indispensable cooperation),
The company already grants to its retiring shall also be held liable under this Act.
employee more than what the law gives which
is ½ month salary for every year of service. WHEN Sexual Harassment punishable:
(WET)
RETIREMENT AGE FOR MINERS  Work-related;
An underground mining employee upon  Education-related; and
reaching the age of fifty (50) years or more,  Training-related.
but not beyond 60 years, which is hereby
declared the compulsory retirement age for WHERE committed:
underground mine workers, who has served for In a work or training or education environment.
at least five years as underground mine worker,
may retire and shall be entitled to all the HOW Committed:
retirement benefits provided for in the Article. General Rule: Demands, requests or
otherwise requires any sexual favor from the
other regardless of whether the demand,
ANTI-SEXUAL HARASSMENT ACT (R.A. request or requirement for submission is
7877) accepted by the object of said act.

DECLARATION OF POLICY Specifically:


 The State shall: (D2H2) In a work-related or employment environment,
 Value the Dignity of every individual; sexual harassment is committed when: (CRI-
 Enhance the development of its Human IHO)
resources;
 Guarantee full respect for Human rights; The sexual favor is made as a Condition:
and  In the hiring or in the employment;
 Uphold the Dignity of workers, employees,  Re-employment or continued employment
applicants for employment, students or of said individual; or
those undergoing training, instruction or  In granting said individual favourable
education. compensation, terms, conditions,
promotions or privileges.
Note: All forms of sexual harassment in the  The Refusal to grant the sexual favour
employment, education or training environment results in limiting, segregating or
are hereby declared UNLAWFUL! classifying the employee which in any way
would discriminate, deprive or diminish
employment opportunities or otherwise
WORK, EDUCATION OR TRAINING- adversely affect said employee;
RELATED SEXUAL HARASSMENT DEFINED  The above acts would Impair the
employee’s rights and privileges under
WHO may commit: existing labor laws; and
 Supervisor  The above acts would result in an
 Agent of the employer Intimidating, Hostile or Offensive
 Manager environment for the employee (IHO)
 Employer
 Employee In an education or training environment,
 Teacher sexual harassment is committed: (CEC-
 Instructor IHO)
 Professor  Against one who is under the Care,
 Coach custody or supervision of the offender;
 Trainor; and  Against one whose Education, training,
 Any other person who, having authority, apprenticeship or tutorship is entrusted to
influence or moral ascendancy (AIM) the offender;
over another.  When the sexual favor is made a Condition
 Any person who Directs or induces to the giving of a passing grade, or the
another to commit any act of sexual granting of honors and scholarships, or
the payment of a stipend, allowance or Penalties
other benefits, privileges or Any person who violates the provisions of this
considerations; and Act shall, upon conviction, be penalized by
 When the sexual advances result in an imprisonment of not less than 1 month nor
Intimidating, Hostile or Offensive more than 6 months* (seriously??), or a fine of
environment for the result, trainee or not less than PHP10,000.00 nor more than
apprentice (IHO). PHP20,000.00, or both such fine and
imprisonment at the discretion of the court.
Duty of the Employer or Head of Office in
a Work-Related, Education or Training Prescription
Environment It is the duty of the Any action arising from the violation of the
employer or head of office in a work- provisions of this Act shall prescribe in three (3)
related, education or training years.
environment:
 To prevent or deter the commission of
acts of sexual harassment;
 To provide the procedures for the
resolution, settlement or prosecution of
acts of sexual harassment;
 Promulgate appropriate rules and
regulations in consultation with and jointly
approved by the employees or students or
trainees, through their duly designated
representative, prescribing the procedure
for the investigation of sexual harassment
cases and the administrative sanctions
therefor;
 Create a Committee on decorum and
investigation of cases on sexual
harassment to increase understanding and
prevent incidents of sexual harassment;
and
 The employer or head of office, educational
or training institution shall Disseminate or
post a copy of this Act for the information
of all concerned.

Note: Administrative sanctions shall not


be a bar to prosecution in the proper
courts for unlawful acts of sexual
harassment.
Liability of the Employer or Head of Office,
Educational or Training Institution
Shall be SOLIDARILY liable for damages arising
from the acts of sexual harassment committed
in the employment, education or training
environment if the employer or head of office,
educational or training institution is informed of
such acts by the offended party and no
immediate action is taken thereon.

Independent Action for Damages


Nothing in this Act shall preclude the victim of
work, education or training-related sexual
harassment from instituting a separate and
independent action for damages and other
affirmative relief.