Special Groups of Employees
The law recognizes these special groups of employees: apprentices, learners, women, minor, and handicapped. Accordingly, there are special rules which govern them.
An apprentice is a worker covered by a written apprenticeship agreement with an individual employer or any of the entities recognized in the Labor Code. To qualify as one, an apprentice should: (a) be at least 14 years of age; (b) possess vocational aptitude and capacity for appropriate tests; and, (c) possess the ability to comprehend and follow oral and written instructions.
The law specifically defines an apprenticeship as a practical training on the job supplemented by related theoretical instruction. Hence, an employer and an apprentice enters into an apprenticeship agreementwherein the employer binds himself to train the apprentice who in turn accepts the terms of training. An apprenticeship should not exceed six months.
It is only employers in the highly technical industries that may employ apprentices and only in DOLE-approved apprenticeable occupations.An apprenticeable occupation is any trade, form of employment or occupation that requires more than three months of practical training on the job supplemented by theoretical instruction.
An apprentice may be paid below minimum wage, but not lower than 75% thereof. However, DOLE may authorize the hiring of apprentices without compensation so long as that the on the job training is required by the school or training program curriculum or as a requisite for graduation or board examination. For this reason, an employer may engage student interns without paying them provided the requisites are complied.
A learner is a trainee in semi-skilled and other industrial occupations which are non-apprenticeable as they may be learned through practical training on the job in a relatively short period of time not exceeding three months.
The learnership agreement between the employer and the learner requires that the following terms and conditions be stipulated: (a) the names and addresses of the laerners; (b) the duration of the learnershihp period, which should not exceed three months; (c) the wages or salaries of the learners which shall begin at not less than 75% of the applicable minimum wage; and (d) a commitment to employ the learners if they so desire as regular employees upon completion of the learnership. To be clear, the employer is obliged to hire the learner who wants to be a regular employee after the learnership period.
Unlike apprentices, learners may be hired only during these situations: (a) when no experienced workers are available; (b) the employment of learners is necessary to prevent curtailment of employment opportunities, and (c) the employment does not create unfair competition in terms of labor costs or impair/lower working standards. The reason for the limitations is due to the fact that learners may be paid below minimum wage.
A learner becomes a regular employee if his training is terminated by the employer before the end of the stipulated period without any fault of the former provided he has been allowed or suffered to work during the first two months.
Handicapped workers are those whose earning capacity is impaired by either age, physical or mental deficiency, or injury. To emphasize, age is considered a handicap only when as a result thereof a person’s earning capacity is impaired.
Similar to learners, handicapped employees may be hired only in these situations: (a) when their employment is necessary to prevent curtailment of employment opportunities, and (b) when it does not create unfair competition in labor costs or impair or lower working standards. The limitations are primarily due to the fact that handicapped workers may be paid below minimum wage, but not lower than 75% thereof.
A handicapped employee may be hired as apprentices or learners provided that their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired.
As to the terms and conditions of employment, thelaw prohibits an employer from discriminating against any woman employee solely on account of her sex. If violated, the employer may face criminal prosecution, among others.
In addition to the rule against discrimination, the employer is further prohibited from doing either of the following: (a) to deny any woman employee her statutory monetary benefits or to discharge any woman employed for the purpose of preventing her from enjoying these benefits; (b) to discharge any woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy; (c) to discharge or refuse the admission of such woman upon returning to her work for fear that she may be pregnant.
In particular, it is unlawful for any employer to require as a condition of employment or continuation of employment: (a) that a woman does not get married; (b) that a woman is deemed resigned or separated upon getting married, whether such agreement is expressly or tacitly done; or (c) that a woman is dismissed, discharged, discriminated or otherwise prejudiced by reason of her marriage.
Duncan Association of Detailman-PTGWO v.
Glaxo Wellcome Philippines, Inc.
G.R. No. 162994, 17 September 2004
Complainant Pedro A. Tecson filed a labor case for constructive dismissal against his employer defendant Glaxo Wellcome Philippines, Inc. (Glaxo). Previously, complainant was hired as a medical representative. Sometime later, complainant entered into romantic relationship with Betsy, an employee of Astra Pharmaceuticals (Astra), which is a competitor of Glaxo. Complainant was informed by management of the company policy against it as it may pose a conflict of interest. Notwithstanding, “love prevailed” and the two got married. Thus, management transferred complainant to the Butuan City-Surigao City-Agusan del Sur sales area away from Betsy who was employed at Astra’s Albay branch.
HELD: The company was not liable. “Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors, especially so that it and Astra are rival companies in the highly competitive pharmaceutical industry.
“The prohibition against personal or marital relationships with employees of competitor companies upon Glaxo’s employees is reasonable under the circumstances because relationships of that nature might compromise the interests of the company. In laying down the assailed company policy, Glaxo only aims to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures.
“That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the Constitution recognizes the right of enterprises to adopt and enforce such a policy to protect its right to reasonable returns on investments and to expansion and growth. Indeed, while our laws endeavor to give life to the constitutional policy on social justice and the protection of labor, it does not mean that every labor dispute will be decided in favor of the workers. The law also recognizes that management has rights which are also entitled to respect and enforcement in the interest of fair play.
“As held in a Georgia, U.S.A. case, it is a legitimate business practice to guard business confidentiality and protect a competitive position by even-handedly disqualifying from jobs male and female applicants or employees who are married to a competitor. Consequently, the court ruled than an employer that discharged an employee who was married to an employee of an active competitor did not violate Title VII of the Civil Rights Act of 1964. The Court pointed out that the policy was applied to men and women equally, and noted that the employer’s business was highly competitive and that gaining inside information would constitute a competitive advantage.
It should be noted that “from the wordings of the contractual provision and the policy in its employee handbook, it is clear that Glaxo does not impose an absolute prohibition against relationships between its employees and those of competitor companies. Its employees are free to cultivate relationships with and marry persons of their own choosing. What the company merely seeks to avoid is a conflict of interest between the employee and the company that may arise out of such relationships. As succinctly explained by the appellate court, thus:
“The policy being questioned is not a policy against marriage. An employee of the company remains free to marry anyone of his or her choosing. The policy is not aimed at restricting a personal prerogative that belongs only to the individual. However, an employee’s personal decision does not detract the employer from exercising management prerogatives to ensure maximum profit and business success…
“The Court of Appeals also correctly noted that the assailed company policy which forms part of respondent’s Employee Code of Conduct and of its contracts with its employees, such as that signed by Tescon, was made known to him prior to his employment. Tecson, therefore, was aware of that restriction when he signed his employment contract and when he entered into a relationship with Bettsy. Since Tecson knowingly and voluntarily entered into a contract of employment with Glaxo, the stipulations therein have the force of law between them and, thus, should be complied with in good faith. He is therefore estopped from questioning said policy. (Emphasis supplied.)
Best Legal Practices:
Stipulations on leave of absence for pregnant women subject to statutory monetary benefits and under company policies – For justifiable reasons, the management may require a pregnant employee to take a leave of absence provided that the statutory monetary benefits and those under the company policies are paid.
For certain industries, labor law classifies a woman as an employee even if there is clear and categorical agreement to that effect with an employer. Only for the purpose of labor law, a woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishments, is considered as an employee of such establishment for labor law purposes, so long as she is under the effective control or supervision of the employer for a substantial period of time as determined by DOLE.
Children below 15 years of age cannot be employed. These are the very limited exceptions: (a) when they work directly under the sole responsibility of his parents or guardian, and (b) their employment does not in any way interfere with his schooling. Meanwhile, children between 15 and 18 years of age may be employed for such number of hours and such periods of the day as determined by DOLE regulations. Notwithstanding, children below 18 years of age cannot be employed in an undertaking which is hazardous and deleterious in nature as determined by DOLE.
Best Legal Practices:
Obtain written consent of both parents or legal guardian when hiring minors – The employer should require any prospective employees who are minors to submit written consent from both of their parents or legal guardian. The written consent should preferably be notarized. The management should provide the consent form to the said minors.
As to the terms and conditions of employment, labor law prohibits the employer from discriminating against any person simply on account of his age.
There are two kinds of househelper: ordinary or industrial. There are different and separate rules that govern each one of them.
An ordinary househelper is one who provides domestic or household service rendered in the employer’s home and such service is usually necessary or desirable for the maintenance and enjoyment thereof, such as ministering to the personal comfort and convenience of the members of the employer’s household, including but not limited to, family drivers, domestic servants, laundy women, gardeners.
An industrial househelper is a regular employee working within the premises of the business of the employer in relation to or in connection with its business (e.g. staff houses) for its guest or its officers and employees.
While an ordinary househelper may be paid below minimum wage, an industrial helper is required to be paid at least the minimum wage if the establishment is not otherwise exempted.
A homeworker is one who processes or fabricates any goods, articles, or materials in or about a home. An employer of a homeworker includes any person, whether natural or artificial who, for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly, or through an employee, agent contractor, or sub-contractor or any other person either to:
- Deliver or cause to be delivered, any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his directions; or
- Sell any goods, articles or materials to be processed or fabricated in or about a home and then rebuys them after such processing, either by himself or through some other person.
Ordinarily, homeworkers are those who make handicrafts or handiworks such as rattan bags, souvenir items, printed shirts, and the like. They are ordinarily a small group and sometimes a cooperative who produce these commodities.
With the rise of the Internet, there are many who work online from the comforts of their home. Some of these include freelance writers, bloggers, photographers, computer programmers, and designers. So long as they process or fabricate goods, articles, or materials, they may be considered homeworkers. For instance, writers can sell their articles or photographer can trade their photos.
However, those working from home who offer services cannot be considered as homeworker as they are not included in the definition. For example, those who offer services as a virtual secretary or staff are in the service industry. They do not primarily manufacture any good, article, or material.
A non-resident alien is a foreigner who seeks admission to the country for employment purposes by any domestic or foreign employer who desires to engage an alien.
Non-resident aliens are required to obtain from DOLE an Alien Employment Permit (AEP), which certifies that they are allowed to be employed after meeting the requirements by law. The AEP is only issued to a non-resident alien or to the applicant employer after a determination of non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. The alien cannot change his employment without the prior approval of the DOLE Secretary.
The reason behind the AEP is primarily due to the constitutional mandate that the practice of all professions in the Philippines are limited to Filipino citizens, save in cases prescribed by law.
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 Ibid. Article 58 (b).
 Ibid. Article 59.
 Ibid. Article 58 (a).
 Ibid. Article 58 (d).
 Ibid. Article 61.
 Ibid. Article 60.
 Ibid. Article 58 (c).
 LABOR CODE. Article 72.
 Ibid. Article 73.
 Ibid. Article 75.
 Ibid. Article 74.
 Ibid. Article 75 (d).
 Ibid. Article 78.
 Ibid. Article 79.
 Ibid. Article 80 (b).
 Ibid. Article 81.
 Ibid. Paragraph 1, Article 133. The following are acts of discrimination: (a) payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employee as against a male employee, for work of equal value; and, (b) favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes (Paragraph 2, Article 133, Labor Code).
 Ibid. Paragraph 3, Article 135.
 Ibid. Article 135.
 Ibid. Article 136.
 Ibid. Article 136. While the law does not categorize the woman worker as a regular employee or otherwise, it is submitted that the said woman worker may be considered as a regular employee provided she performs activities which are “usually necessary or desirable in the usual business or trade of the employer” (Article 294, Labor Code) and absent any employment contract stating the status of her employment. This is in harmony with the rule that labor laws and employment contracts are interpreted in favor of labor when there is doubt (Article 1702, Civil Code). Being a regular employee is definitely more favorable.
 Ibid. Article 137 (a). It is submitted that the age requirement should read as 15 and below to harmonize it with other laws concerning minors..
 Ibid. Article 137 (a). It is submitted that the age requirement should read as 15 and below to harmonize it with other laws concerning minors..
 Ibid. Article 137 (b).
 Ibid. Article 137 (c).
 Ibid. Article 138.
 LABOR CODE. Paragraph 2, Article 139. An ordinary househelper includes family drivers, domestic servants, laundry women, yayas, gardeners, houseboys, and similar househelps (Apex Mining Company, Inc., v. National Labor Relations Commission, G.R. No. 94951, 22 April 1991).
 Remington Industrial Sales Corporation v. Erlinda Castaneda, G.R. No. 169295-96, 20 November 2006.; Apex Mining Company, Inc., v. National Labor Relations Commission, G.R. No. 94951, 22 April 1991
 Ibid. Articles 143.
 Ibid. Article 153.
 LABOR CODE. Paragraph 1, Article 40.
 LABOR CODE. Paragraph 2, Article 40.
 Ibid. Article 41(a).
 Ibid. Article XII, Section 14.