See - SC hopes to cut down trial from 5 years to 90 days with new system | News | GMA News Online
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The Supreme Court on Wednesday formally launched a "continuous trial system" that is expected to significantly cut trial duration from the usual three to five years to just around 90 days.
Volunteering to start the continuous trial system are 26 judges coming from 20 regional trial courts and six metropolitan trial courts from Quezon City, Makati, Manila.
In her speech, Chief Justice Maria Lourdes Sereno said she hopes continuous trials would soon become the "norm" in the Philippine justice system.
Gloria Steele, mission director at USAID Philippines, which extended financial support for the project, expressed confidence on the success of the new system.
"Under the leadership of Chief Justice Maria Lourdes Sereno, I know this will be a resounding success and this shows that it is possible to resolve cases at a shorter period of time," she said.
For her part, Justice Secretary Leila de Lima also threw her support to the newly introduced system, assuring the Supreme Court that it can expect government prosecutors and lawyers from the Department of Justice to cooperate.
"The men and women of the DOJ stand with the Supreme Court to make this a reality. Sagot ko po ang public prosecutors and attorneys to ensure the success of this endeavor," she said.
While she welcomed the new project, SC Associate Justice Teresita Leonardo-De Castro admitted that the draft guidelines prepared by the volunteer judges still needed improvement, even as she gave an advice on what key points to add to the guidelines.
De Castro reminded the volunteer judges that they cannot include guidelines that are not consistent with existing rules.
"It is important for you to group your cases into those going into continuous trial and those which will be dealt with the way you use to do," De Castro advised the judges, whom she described as being "brave" for taking on the task of being the first ones to try the new system.
De Castro recalled how she personally experienced trial delays when she was still presiding justice at the Sandiganbayan.
For his part, Associate Justice Presbitero Velasco also urged prosecutors to take the new system seriously since they too contribute to its success.
"If prosecutors and Public Attorney's Office lawyers are not ready to present their witneseses, then we have a problem with the continuous trial system," he said, adding that an "effective" pre-trial should be observed in cases.
In her annual press conference for the media last August, Sereno mentioned the continuous trial system, saying that she hopes that there would be 100 volunteer courts holding continuous trials by 2015 and 500 volunteer courts by 2016. —KBK, GMA News.
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Friday, September 26, 2014
PNoy’s ‘siege on judiciary’ is ‘threat to democracy,’ legal alliance says | News | GMA News Online
See - PNoy’s ‘siege on judiciary’ is ‘threat to democracy,’ legal alliance says | News | GMA News Online
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During a news conference at the Integrated Bar of the Philippines' main office in Pasig, the Alliance of Lawyers and Advocates for Judicial Independence also opposed any attempts to amend the 1987 Constitution and extend the term of President Aquino.
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An alliance of lawyers, law students and judicial independence advocates on Friday called for a stop on what they labeled as the administration's "siege on the judiciary," describing President Benigno Aquino III's recent actions toward the judiciary as a "threat to democracy."
During a news conference at the Integrated Bar of the Philippines' main office in Pasig, the Alliance of Lawyers and Advocates for Judicial Independence also opposed any attempts to amend the 1987 Constitution and extend the term of President Aquino.
"We implore our political leaders to put a halt to the siege on the judiciary," said IBP executive vice president Rosario Setias-Reyes as she read the alliance's statement.
"At no time under the post-EDSA revolution era has judicial independence been under siege than today," she said.
Democracy was restored in February 1986 following the ouster of the late strongman Ferdinand Marcos. The bloodless revolution catapulted President Aquino's mother, Corazon, to the presidency at the time.
"At no time under the post-EDSA revolution era has judicial independence been under siege than today," she said.
Democracy was restored in February 1986 following the ouster of the late strongman Ferdinand Marcos. The bloodless revolution catapulted President Aquino's mother, Corazon, to the presidency at the time.
Aside from the IBP, other groups Included in the alliance are the Philippine Association of Law Schools, Philippine Trial Lawyers Association, Vanguard of the Philippine Constitution, Legal Advocates for Democracy, AnIB, National Union of People's Lawyers, Muslim Legal Assistance Foundation (MLAF), University of the Philippines Law Student Government, and the Judiciary Employees Association.
PNoy's actions vs. judiciary
PNoy's actions vs. judiciary
At the same press briefing, IBP national president Vicente Joyas stressed that the alliance was condemning not necessarily President Aquino but his actions against the judiciary.
"Hindi si President Aquino ang banta sa demokrasiya kung hindi ang aksyon niya. We never condemn a person but we condemn the action. So iyong ginagawa niya ang banta sa demokrasiya," Joyas said.
Lawyer JV Bautista of AniB, meanwhile, also appealed to Aquino to "cease and desist from attacking judicial independence."
"We view this with great concern. This is a threat if not an outright assault not only on the Supreme Court but the judiciary. If that happens, you can expect us lawyers to come out and defend judicial independence and the rule of law," said Bautista.
Earlier, President Aquino warned the high tribunal of a potential gridlock with the executive when theSC struck down as unconstitutional parts of the government's Disbursement Acceleration Program in July.
Malacañang has since appealed the SC decision.
Malacañang has since appealed the SC decision.
But the alliance described Aquino's warning as "sounding like a veiled threat of impeachment" against the SC magistrates. The group claimed the President's "flare-up" even reached the halls of Congress as the House of Representatives started scrutinizing the Judicial Development Fund.
Aquino's alleged offensive against the judiciary reached an "all-time high," according to the alliance, when he openly threatened to clip the power of judicial review through Charter change.
"As the backbone of the rule of law, judicial independence is vital to the health of democracy. If judicial independence suffers a breakdown, the entire system of separation of powers and checks and balances - the great hallmarks of the rule of law - crumbles," the alliance said.
For his part, Bantuas Lucman, acting MLAF secretary general, said he observed that the Aquino administration seemed to have a "propensity to attack" the Supreme Court. He said this started as far back as 2010, after the Supreme Court struck down Executive Order No. 1 which created the "Truth Commission."
"Kapag nagpatuloy ang temperament ng Pangulo laban sa Supreme Court baka maapektuhan kami lalo lahat sa Bangsamoro," said Lucman. — RSJ, GMA News
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Wednesday, September 24, 2014
The Limitations of the International Court of Justice - Technologist
See - The Limitations of the International Court of Justice - Technologist
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The world is becoming a much smaller place given international transportation, multinational corporations, and Internet communications that know no geographic boundaries. With more frequent and heightened dealings with people across the globe, there necessarily are increased international disputes that require resolution.
So, one might think that there is a global court in place to deal with such disputes, right? We do have the International Court of Justice (aka the World Court or the ICJ). But can the World Court get the job done in terms of resolving the vast majority of international disputes?
Unfortunately, the answer is a resounding "no."
The ICJ is the main judicial branch of the United Nations, based in The Hague, Netherlands, and was established in 1945. The ICJ is made up of 15 judges. Each of these judges is elected to nine-year terms by the UN General Assembly and the UN Security Council. Elections are staggered with five judges elected every three years. There cannot be more than one judge from a given country on the court.
While not written in stone, it is understood that five judges will come from Western countries, three from African states, two from Eastern European states, three from Asian states, and two from Latin American and Caribbean states. The five permanent members of the UN Security Council always have one judge on the World Court. This means that the United States, Russia, China, the United Kingdom, and France always have a judge on the court (except when China did not submit a candidate from 1967 to 1985).
The ICJ can hear adversarial proceedings (referred to as "contentious cases") seeking to resolve active disputes (and the court can render certain, non-binding advisory opinions). But only states can be parties to contentious cases. This means that a tremendous number of disputes involving individuals, corporations, parts of states, NGOs, self-determination groups, and even UN bodies are beyond the purview of the World Court.
And even when it comes to states, the ICJ only has jurisdiction based on consent, not compulsory jurisdiction. Thus, if there is a dispute between two states, and one of the states has not consented to World Court jurisdiction by treaty, by specific agreement once the dispute has arisen, or by some other declaration, the ICJ cannot hear the case.
Not surprisingly, the World Court has had a relatively light caseload since it was created back in 1945. And without an overarching court to handle the massive number of international disputes, parties must bring their cases for resolution to domestic courts within states, or certain regional or specialty courts.
Thus, do not let the name "International Court of Justice" fool you. It is the rare international dispute that ultimately finds resolution by this judicial body.
Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office ofDuane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You canread his professional biography here. To receive a weekly email link to Mr. Sinrod's columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
Related Resources:
- When Does Cybercrime Become Internet Warfare? (FindLaw's Technologist)
- Hacking Continues: European Central Bank Is the Latest Victim (FindLaw's Technologist)
- After Uganda's Anti-Gay Law, Countries Suspend Aid (FindLaw's Technologist)
- WTO Nixes China's Restrictions on Rare Earth Exports (FindLaw's Technologist)
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Tuesday, September 23, 2014
SC dismisses anti-graft justice linked to Napoles
See - SC dismisses anti-graft justice linked to Napoles
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GUILTY. The Supreme Court declares Sandiganbayan Justice Gregory Ong (left) guilty of misconduct for his links to Janet Lim Napoles (right). Photo obtained by Rappler
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MANILA, Philippines (8th UPDATE) – The Supreme Court (SC) on Tuesday, September 23, dismissed an anti-graft court justice linked to alleged pork barrel scam mastermind Janet Lim-Napoles.
In its en banc session, the Court voted 8-5-2 declaring Sandiganbayan Gregory Ong guilty of gross misconduct, dishonesty and impropriety. The ruling forfeits all his retirement benefits, "except any accrued benefits," the Tribunal said.
Saying the decision "is immediately executory," the High Court affirmed the recommendation made by retired Supreme Court Associate Justice Angelina Sandoval-Gutierrez, who was tasked to probe Ong.
The 8 justices who agreed to dismiss Ong are: Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio, Justices Arturo Brion, Mariano del Castillo, Martin Villarama Jr, Estela Perlas-Bernabe, Marvic Leonen and Francis Jardeleza.
The 5 justices who dissented are: Justices Presbitero Velasco Jr, Jose Perez, Jose Mendoza, Lucas Bersamin and Bienvenido Reyes.
On the other hand, Justices Teresita Leonardo-de Castro and Diosdado Peralta, who are both former justices at the anti-graft court, inhibited from the case.
Just last week, those who wanted Ong dismissed did not have the numbers; they counted only 6. At least 5 justices wanted Ong suspended for only 3 months, Court insiders said. They were the 5 dissenters who remained steadfast in their decision until the end.
Those who dissented however admitted Ong was liable but that his transgressions were tantamount to "only simple misconduct."
Eventually Jardeleza and Del Castillo joined the 6 original justices who voted for dismissal. Del Castillo, it turns out, had not yet made up his mind, Court sources said. This explains the final 8-5-2 vote.
Photos on Rappler
Rappler exposed Ong's links to Napoles in August 2013 at the height of the pork barrel scandal which has since become the worst corruption case in recent Philippine history. (READ: Exclusive: Napoles parties with anti-graft court justice)
At the time, when Rappler showed Ong a photo of him with Napoles and Senator Jose "Jinggoy" Estrada, who, like Napoles, is now charged with plunder, the justice denied knowing her. “I do not know her. She did not appear in court. I think she had a waiver of appearance in court,” he replied when reminded that Napoles and her brother, Reynald Lim (alias Reynaldo Francisco), were both respondents in the Kelvar helmet case.
In 2010, Napoles got off the hook in the Kevlar helmet case that was tried by the Sandiganbayan Fourth Division which Ong chaired.
Ong's name was subsequently dragged into the various affidavits submitted to the Senate last year by pork barrel scam whistleblowers-turned-state witnesses Benhur Luy and Marina Sula.
Ong's name also appeared in the digital files submitted by Luy to the Senate. Under disbursements dated November 10, 2004, Ong’s name appeared for a transaction that involved "narra wood parquet-bulletin board.” A voucher numbered 11-2566 listed a small amount of P12,000 as being disbursed. (READ: Anti-graft court justice in pork scam files)
At around this time, the highly irregular Kevlar helmet case involving Napoles and her family was still being tried by Ong’s division in the Sandiganbayan.
The SC Public Information Office told the media Tuesday that the justices took into serious consideration the testimonies of Luy and Sula.
"The Court noted that the testimonies of Luy and Sula showed that Ong was in contact with Napoles during the pendency of the Kevlar case and while the evidence was insufficient to sustain the bribery and corruption charges as both Luy and Sula did not witness Ong actually receiving money from Napoles, the Court nonetheless found credible evidence of Ong’s association with Napoles after the promulgation of the Kevlar case," the SC PIO said.
Gutierrez probe
In January 2014 the High Court, acting on its own in the wake of the whistle-blowers' testimonies, asked Ong to explain the allegations against him. He submitted a written explanation which was apparently not sufficient because the Tribunal still insisted on creating a body to investigate him.
As part of her investigation, Gutierrez summoned other personalities who could shed light on the case against Ong. The former justice also summoned Ong himself who denied any wrongdoing or irregularity but admitted knowing Napoles, according to sources privy to the probe.
Rappler's investigative reporter Aries Rufo was also summoned by Gutierrez about the photo.
GUILTY. The Supreme Court declares Sandiganbayan Justice Gregory Ong (left) guilty of misconduct for his links to Janet Lim Napoles (right). Photo obtained by RapplerNapoles is the alleged brains behind a massive diversion of lawmakers' Priority Development Assistance Fund (PDAF) or pork barrel to ghost projects of non-profit foundations she controlled.
In her report to the SC dated May 15, 2014, Gutierrez concluded that the justice was Napoles' main contact at the anti-graft court. She found“substantial evidence” that Ong was guilty of gross misconduct, dishonesty and impropriety for disgracing the integrity of the judiciary.
Ong was an appointee of ousted president Joseph Estrada in 1998.
When the plunder cases against the younger Estrada and other personalities linked to the pork barrel scam scandal were filed before the Sandiganbayan, Ong inhibited himself from these cases due to the SC probe.
Impact on Sandiganbayan
Sandiganbayan spokesperson Renato Bocar said the SC decision will not affect pending cases before Ong's division.
Sandiganbayan Justice Jose Hernandez is now the acting Fourth Division chairman, he said. Justice Alex Quiroz will then fill in the vacancy in the division as the "warm body" or the special member to fill in vacancies.
The 61-year-old Ong has had a controversial judicial career.
In 2007, his appointment as SC justice was blocked by civil society group Kilosbayan, which claimed that Ong was not a natural-born Filipino citizen, a requirement for members of the SC.
Following the controversy, former president Gloria Macapagal-Arroyo withdrew her appointment, although a lower court later ruled that Ong was a natural-born Filipino citizen.
Three years later, Ong, together with two other members of the 4th division, faced an administrative complaint for grave misconduct, conduct unbecoming of a justice, falsification of public documents, improprieties in the hearing of cases and manifest impartiality and gross ignorance of the law. This was his first administrative case.
During its investigation, the Court administrator junked the other complaints against the justices but found them liable for violation of the Rules of Court and the Revised Internal Rules of the Sandiganbayan.
Reacting to the SC decision Tuesday, Justice Secretary Leila de Lima, who initiated the probe into the pork barrel scam, said: "Finally deciding to dismiss rather than merely suspend Justice Ong, the SC affirms that moral integrity is not divisible. It is the highest qualification for judges and justices. Members of the judiciary found lacking in integrity cannot be merely suspended because the character disqualification is permanent, not only incidental. The trust of the people in the justice system is best preserved by maintaining the highest levels of moral integrity in the superior courts." – with reports from Buena Bernal and Aries Rufo/Rappler.com.
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Why the Overuse of Pretrial Detention is an Overlooked Human Rights Crisis | Open Society Foundations (OSF)
See - Why the Overuse of Pretrial Detention is an Overlooked Human Rights Crisis | Open Society Foundations (OSF)
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Every year, around 15 million people find themselves behind bars, awaiting trial on criminal charges. Some will end up waiting months or even years for their day in court—victims of what is perhaps the most overlooked human rights crisis of our time: the overuse of pretrial detention.
Many don’t need to be there, but are held on charges linked to minor, nonviolent offenses. Others should have been tried, or released: people like Sikiru Alade, a young Nigerian who spent almost 10 years in pretrial detention accused of involvement in an armed robbery until he was released in 2012.
From Brazil to Pakistan, many defendants spend more time behind bars awaiting trial than the maximum sentence they would receive if eventually convicted. In Chile, between 2005 and 2010, less than a quarter of pretrial detainees ended up being convicted and receiving a custodial sentence. Even in England and Wales, one half of all pretrial detainees are ultimately acquitted or receive a non-custodial sentence.
Not surprisingly, it is the poor who make up the vast majority of those held in pretrial. A new global survey on the issue from the Open Society Justice Initiative, Presumed Guilty: The Global Overuse of Pretrial Detention, notes that the poor “are more likely to come into conflict with the law, more likely to be detained pending trial,” and less able to afford the keys to pretrial release: a bribe, bail, or a lawyer.
Ethnic minorities are also disproportionately represented in pretrial detainee populations around the world—Dalits in India, African Americans in the United States, Aboriginal people in Australia.
The result is a horrific waste of human life. Compared to sentenced prisoners, pretrial detainees often enjoy less access to food, adequate beds, health care, or exercise. Infectious diseases—HIV/AIDS, hepatitis, and tuberculosis—are common. According to the World Health Organization, suicide rates among pretrial detainees are three times those of convicted prisoners.
Not all detention is irrational or unlawful. Persons who present a genuine risk of flight or of endangering witnesses or the community must be detained before trial, in the absence of reasonable alternatives. Applied properly and sparingly, pretrial detention plays an important role in a balanced criminal justice system.
There are solutions for reducing pretrial detention being pursued around the world. One important step is to provide defendants with some legal advice when they appear before a magistrate, to ensure that there is proper grounds for arrest, and to make the case for pretrial release if there is no threat to the public.
These projects don’t cost much, and they can reduce costs and cut prison overcrowding. Other steps include properly financing the training of judges and police, and even basic steps such as ensuring that there are police vehicles available to take suspects to court hearings.
Governments and donors need to support this kind of reform work, which has a direct impact on the economic and social well-being of detainees’ families and communities. That’s one of the reasons why the Open Society Foundations and others want the United Nations’ new post-2015 development goals, now under negotiation in New York, to include clear and measurable goals for this kind of work—under the rubric “access to justice.”
After decades of over-incarceration, cutting the number of people behind bars who face trial is a global imperative.
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House bill seeks stronger illegal wealth forfeiture law | Headlines, News, The Philippine Star | philstar.com
See - House bill seeks stronger illegal wealth forfeiture law | Headlines, News, The Philippine Star | philstar.com
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"x x x.
MANILA, Philippines - Two Mindanao congressmen have filed a bill that seeks to strengthen the law on forfeiture of illegal wealth acquired by government officials and employees.
Cagayan de Oro City Rep. Rufus Rodriguez, who is president of Centrist Democratic Party of the Philippines, and his brother Maximo, who represents party-list group Abante Mindanao, authored Bill 4732.
The bill is titled, “An Act strengthening the forfeiture powers of the State, amending for the purpose certain provisions of Republic Act No. 1379, otherwise known as, ‘An Act declaring forfeiture in favor of the State any property found to have been unlawfully acquired by any public officer or employee and providing for the proceedings therefore’.”
“The proposed amendments should serve as an effective deterrent to prevent public officials or employees from concealing, destroying or dissipating their unlawfully acquired properties and safeguard the interest of the state in the recovery of such assets which rightfully belong to the people,” the authors said.
They said the state “has the right to recover from public officials or employees, including their transferees or nominees, properties which were not lawfully acquired.”
Due to modern and sophisticated means being employed by corrupt public officials and employees, they are able to spirit away unlawfully acquired properties within an increasingly short period of time, and out of the government’s reach, they said.
“There is thus a need to amend certain provisions of the law for the state to be fully effective in recovering stolen assets by arming its chief enforcer – the Office of the Ombudsman – the necessary powers to run after violators,” they stressed.
Under Bill 4732, a property is presumed illegally acquired by a public officer if it is manifestly out of proportion to his salary and other lawful income.
Failure of a public official or employee to file a statement of assets, liabilities and net worth (SALN) within the period prescribed by law would be considered prima facie evidence that such public officer or employee has no property, asset or business interest to declare.
The bill also provides that during a fact-finding investigation by the Office of the Ombudsman, when there is reasonable ground to believe that a public officer or employee has unlawfully acquired property, the Ombudsman, on behalf of the state, may file an adverse claim in the proper Registry of Deeds or appropriate public registry on such asset.
In case there is danger of depreciation in the value of a personal property or spoilage in case of perishable assets that are subject of forfeiture, such property or assets may be sold at public auction pending the resolution of the forfeiture proceeding.
The proceeds of the sale at public auction would be held in trust by the Office of the Ombudsman until the forfeiture proceeding is finally resolved.
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Tuesday, September 16, 2014
Minimum wage and separation pay for pieceworkers; Pulp & Paper Inc vs NLRC : 116593 : September 24, 1997 : J. Panganiban : Third Division
See - Pulp & Paper Inc vs NLRC : 116593 : September 24, 1997 : J. Panganiban : Third Division
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P118.00 x 26 x 16 years = P49,088.00”
"x x x.
First Issue: Computation of Minimum Wage
Petitioner argues that private respondent was a piece-rate worker and not a time-worker. Since private respondent’s employment as “(p)acker/(w)rapper” in 1975 until her separation on June 29, 1991, “(h)er salary depended upon the number of ‘reams of bond paper’ she packed per day.” Petitioner contends that private respondent’s work “depended upon the number and availability of purchase orders from customers.” Petitioner adds that, oftentimes, “packers/wrappers only work three to four hours a day.” Thus, her separation pay “must be based on her latest actual compensation per piece or on the minimum wage per piece as determined by Article 101 of the Labor Code, whichever is higher, and not on the daily minimum wage applicable to time-workers.”[11]
Compensation of Pieceworkers
In the absence of wage rates based on time and motion studies determined by the labor secretary or submitted by the employer to the labor secretary for his approval, wage rates of piece-rate workers must be based on the applicable daily minimum wage determined by the Regional Tripartite Wages and Productivity Commission. To ensure the payment of fair and reasonable wage rates, Article 101[12] of the Labor Code provides that “the Secretary of Labor shall regulate the payment of wages by results, including pakyao, piecework and other nontime work.” The same statutory provision also states that the wage rates should be based, preferably, on time and motion studies, or those arrived at in consultation with representatives of workers’ and employers’ organizations. In the absence of such prescribed wage rates for piece-rate workers, the ordinary minimum wage rates prescribed by the Regional Tripartite Wages and Productivity Boards should apply. This is in compliance with Section 8 of the Rules Implementing Wage Order Nos. NCR-02 and NCR-02-A -- the prevailing wage order at the time of dismissal of private respondent, viz.:[13]
“SEC. 8. Workers Paid by Results. -- a) All workers paid by results including those who are paid on piece work, takay, pakyaw, or task basis, shall receive not less than the applicable minimum wage rates prescribed under the Order for the normal working hours which shall not exceed eight (8) hours work a day, or a proportion thereof for work of less than the normal working hours.
The adjusted minimum wage rates for workers paid by results shall be computed in accordance with the following steps:
1) Amount of increase in AMW x 100 = % increase
Previous AMW
2) Existing rate/piece x % increase = increase in rate/piece;
3) Existing rate/piece + increase in rate/piece = adjusted rate/piece.
b) The wage rates of workers who are paid by results shall continue to be established in accordance with Art. 101 of the Labor Code, as amended and its implementing regulations.” (Underscoring supplied.)
On November 29, 1991, private respondent was orally informed of the termination of her employment. Wage Order No. NCR-02, in effect at the time, set the minimum daily wage for non-agricultural workers like private respondent at P118.00.[14] This was the rate used by the labor arbiter in computing the separation pay of private respondent. We cannot find any abuse of discretion, let alone grave abuse, in the order of the labor arbiter which was later affirmed by the NLRC.
Moreover, since petitioner employed piece-rate workers, it should have inquired from the secretary of labor about their prescribed specific wage rates. In any event, there being no such prescribed rates, petitioner, after consultation with its workers, should have submitted for the labor secretary’s approval time and motion studies as basis for the wage rates of its employees. This responsibility of the employer is clear under Section 8, Rule VII, Book III of the Omnibus Rules Implementing the Labor Code:
“Section 8. Payment by result. (a) On petition of any interested party, or upon its initiative, the Department of Labor shall use all available devices, including the use of time and motion studies and consultations with representatives of employers’ and workers’ organizations, to determine whether the employees in any industry or enterprise are being compensated in accordance with the minimum wage requirements of this Rule.
(b) The basis for the establishment of rates for piece, output or contract work shall be the performance of an ordinary worker of minimum skill or ability.
(c) An ordinary worker of minimum skill or ability is the average worker of the lowest producing group representing 50% of the total number of employees engaged in similar employment in a particular establishment, excluding learners, apprentices and handicapped workers employed therein.
(d) Where the output rates established by the employer do not conform with the standards prescribed herein, or with the rates prescribed by the Department of Labor in an appropriate order, the employees shall be entitled to the difference between the amount to which they are entitled to receive under such prescribed standards or rates and that actually paid them by employer.”
In the present case, petitioner as the employer unquestionably failed to discharge the foregoing responsibility. Petitioner did not submit to the secretary of labor a proposed wage rate -- based on time and motion studies and reached after consultation with the representatives from both workers’ and employers’ organization -- which would have applied to its piece-rate workers. Without those submissions, the labor arbiter had the duty to use the daily minimum wage rate for non-agricultural workers prevailing at the time of private respondent’s dismissal, as prescribed by the Regional Tripartite Wages and Productivity Boards. Put differently, petitioner did not take the initiative of proposing an appropriate wage rate for its piece-rate workers. In the absence of such wage rate, the labor arbiter cannot be faulted for applying the prescribed minimum wage rate in the computation of private respondent’s separation pay. In fact, it acted and ruled correctly and legally in the premises.
It is clear, therefore, that the applicable minimum wage for an eight-hour working day is the basis for the computation of the separation pay of piece-rate workers like private respondent. The computed daily wage should not be reduced on the basis of unsubstantiated claims that her daily working hours were less than eight. Aside from its bare assertion, petitioner presented no clear proof that private respondent’s regular working day was less than eight hours. Thus, the labor arbiter correctly used the full amount of P118.00 per day in computing private respondent’s separation pay. We agree with the following computation:[15]
“Considering therefore that complainant had been laid-off for more than six (6) months now, we strongly feel that it is already reasonable for the respondent to pay the complainant her separation pay of one month for every year of service, a fraction of six (6) months to be considered as one whole year. Separation pay should be computed based on her minimum salary as will be determined hereunder.
Separation pay 1 month = 16 years
The amount “P118.00” represents the applicable daily minimum wage per Wage Order Nos. NCR-02 and NCR-02-A; “26”, the number of working days in a month after excluding the four Sundays which are deemed rest days; “16”, the total number of years spent by private respondent in the employ of petitioner.
Second Issue: Computation of Separation Pay
Petitioner questions not only the basis for computing private respondent’s monthly wage; it also contends that private respondent’s separation pay should not have been computed at one month’s pay for every year of service. Because private respondent should be considered retrenched, the separation pay should be “one month’s pay or at least one/half (1/2) month pay for every year of service, whichever is higher, and not one (1) month’s pay for every year of service as public respondent had ruled.”[16]
Petitioner misapprehended the ground relied upon by public respondent for awarding separation pay. In this case, public respondent held that private respondent was constructively dismissed, pursuant to Article 286 of the Labor Code which reads:
“ART. 286. When employment not deemed terminated. -- The bonafide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later that one (1) month from his resumption of operations of his employer or from his relief from the military or civic duty.”
Petitioner failed to discern that public respondent, in finding that the services of private respondent were terminated, merely adopted by analogy the rule on constructive dismissal. Since private respondent was not reemployed within six (6) months from the “suspension” of her employment, she is deemed to have been constructively dismissed.[17] Otherwise, private respondent will remain in a perpetual “floating status.” Because petitioner had not shown by competent evidence any just cause for the dismissal of private respondent, she is entitled to reinstatement[18] or, if this is not feasible, to separation pay equivalent to one (1) month salary for every year of service. Private respondent, however, neither asked for reinstatement[19] nor appealed from the labor arbiter’s finding that she was not illegally dismissed; she merely prayed for the grant of her monetary claims. Thus, we sustain the award of separation pay made by public respondent,[20] for employees constructively dismissed are entitled to separation pay. Because she did not ask for more, we cannot give her more. We repeat: she appealed neither the decision of the labor arbiter nor that of the NLRC. Hence, she is not entitled to any affirmative relief.
Furthermore, we cannot sustain petitioner’s claim that private respondent was retrenched. For retrenchment to be considered a ground for termination, the employer must serve a written notice on the workers and the Department of Labor and Employment at least one month before the intended date thereof.[21] Petitioner did not comply with this requirement.
Third Issue: Determination of Salary Differential
In light of the foregoing discussion, we must also dismiss petitioner’s challenge to the computation of salary differential. As earlier observed, private respondent is entitled to the minimum wage prevailing at the time of the termination of her employment. The same rate of minimum wage, P118.00, should be used in computing her salary differential resulting from petitioner’s underpayment of her wages. Thus, the labor arbiter correctly deducted private respondent’s actually received wage of P60 a day from the prescribed daily minimum wage of P118.00, and multiplied the difference by 26 working days, and subsequently by 16 years, equivalent to her length of service with petitioner. Thus, the amount of P31,149.56 as salary differential.[22]
Petitioner argues that “the work of the private respondent is seasonal, being dependent upon the availability of job-orders” and not “twenty-six (26) days a month.”[23] Further, petitioner contends that private respondent herself admitted she was “a piece worker whose work [was] seasonal.”[24]
Contrary to the assertion of petitioner, neither the assailed Decision nor the pleadings of private respondent show that private respondent’s work was seasonal. More important, petitioner utterly failed to substantiate its allegation that private respondent’s work was seasonal. We observe that the labor arbiter based the computation of the salary differential on a 26-day month on the presumption that private respondent’s work was continuous. In view of the failure of petitioner to support its claim, we must sustain the correctness of this computation.
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Labor cases; FAQs - NLRC Proceedings.
See - Department of Labor and Employment - Pages
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NLRC Proceedings: What is an appeal in compulsory arbitration?
NLRC Proceedings: When to submit position papers/ memorandum
NLRC Proceedings: How many copies of the appeal must be submitted and where does one file an appeal?
NLRC Proceedings: When will the Labor Arbiter render decision?
NLRC Proceedings: May the Labor Arbiter conciliate disputes?
NLRC Proceedings: Conference
NLRC Proceedings: When is a hearing necessary or not?
NLRC Proceedings: What is the period of appeal?
NLRC Proceedings: What are certified labor disputes?
NLRC Proceedings: Number of conferences allowed
NLRC Proceedings: What are the other requisites for the perfection of an appeal?
NLRC Proceedings: How much is the appeal fee?
NLRC Proceedings: When is a bond required in an appeal?
NLRC Proceedings: Can an appeal for decisions involving monetary award be perfected without posting a bond?
NLRC Proceedings: What is the period to resolve the appeal?
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FAQs - NLRC Proceedings
NLRC Proceedings: What is an appeal in compulsory arbitration?
When an aggrieved party is not satisfied with the decision, order or award of the Labor Arbiter, POEA Administrator or DOLE Regional Director or his duly authorized hearing officer, the decision, award or order may be elevated to the Commission Proper upon grounds provided by law.
NLRC Proceedings: When to submit position papers/ memorandum
If, during the conferences, the parties fail to agree upon an amicable settlement, either in whole or in part, the Labor Arbiter shall issue an order directing the parties to simultaneously file their respective verified position papers, with the supporting documents and affidavits within fifteen (15) calendar days from the date of the last conference, with proof of having furnished each other with the copies thereof.
The verified position papers shall cover only those claims and causes of action raised in the complaint excluding those that may have been amicably settled.
The Labor Arbiter determines the necessity of a hearing
As soon as the parties have submitted their position papers/memorandum, the Labor Arbiter shall, motu propio, determine whether there is a need for a formal trial or hearing. The Labor Arbiter may, at his discretion, ask clarificatory questions to further elicit facts or information, including but not limited to the subpoena of relevant documentary evidence from any party or witness.
NLRC Proceedings: How many copies of the appeal must be submitted and where does one file an appeal?
The appeal, in five (5) legibly typewritten copies, may be filed with the respective Regional Arbitration Branch, the DOLE Regional Office or the POEA, where the case was heard and decided.
NLRC Proceedings: When will the Labor Arbiter render decision?
The Arbiter shall render his decision within thirty (30) calendar days, without extension, after the submission of the case by the parties for resolution, even in the absence of stenographic notes, provided however that cases involving Overseas Filipino Workers shall be decided within ninety (90) calendar days after the filing of the complaint which shall be deemed perfected upon acquisition by the labor arbiter of jurisdiction over the respondent/s. (Sec. 5, Rule 5, NLRC Rules as Amended)
NLRC Proceedings: May the Labor Arbiter conciliate disputes?
Yes. At any stage of the proceedings in all cases, the Arbiter shall exert all efforts and take positive steps toward resolving the dispute through conciliation.
NLRC Proceedings: Conference
The Labor Arbiter shall summon the parties to a conference within two days from receipt of an assigned case.The purpose of the conference is either to:
- amicably settle the dispute;
- determine the real parties in interest;
- define and simplify the issues of the case;
- enter into admissions and/or stipulations of facts; and
- thresh out preliminary matters. (Sec. 2, Rule 5, NLRC Rules as Amended)
NLRC Proceedings: When is a hearing necessary or not?
If there is a need for a hearing, the Labor Arbiter shall issue an order setting the date or dates for said hearing which shall be terminated within ninety (90) days from initial hearing. However, if he finds no necessity for further hearing after the parties have submitted their position papers and supporting documents, he shall issue an Order to that effect and inform the parties. The Arbiter shall render his decision in the case within ninety (90) days.
NLRC Proceedings: What is the period of appeal?
Within ten (10) calendar days from receipt of such decisions, awards or orders of the Labor Arbiter or of the POEA Administrator. In case of a decision of the Regional Director or his duly authorized hearing officer, the appeal may be filed within five (5) calendar days from receipt of such decisions, awards or orders.
NLRC Proceedings: What are certified labor disputes?
Certified labor disputes are cases certified to the Commission for compulsory arbitration by the Secretary of Labor and Employment if in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest. (Sec. 2, Rule 9, NLRC Rules as Amended)
What are the effects of certification?
Upon certification, the intended or impending strike or lockout is automatically prohibited even if there is a motion for reconsideration of the certification order in the Office of the Secretary.
If a work stoppage has already taken place at the time of the Certification, all striking or locked-out employees are to immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms existing before the strike or lockout. (Sec. 5, Rule 9, NLRC Rules as Amended)
When will the Commission resolve a certified case?
The Commission, sitting in the appropriate Division shall decide or resolve the certified dispute within thirty (30) calendar days from the date of submission of the dispute for resolution. (Sec. 4, Rule 9, NLRC Rules as Amended)
NLRC Proceedings: Number of conferences allowed
The number of conferences shall not exceed three (3) settings and shall be terminated within thirty (30) calendar days from the date of the first conference.
No motion for postponement shall be entertained. Non-appearance of the complainant/s during the scheduled hearings for mediation/conciliation conference shall be a ground for the dismissal of the case without prejudice.
In case of non-appearance of the respondent/s during the first conference, a second conference shall proceed. Non-appearance of the respondent/s during the second conference shall immediately terminate the mandatory conciliation/mediation conference. The complainant/s shall thereupon be allowed to file his position paper as well as submit evidence in support of his cause or causes of action after which, the labor arbiter shall render his decision on the basis of the evidence on record. (Sec. 2, Rule 5, NLRC Rules as Amended)
NLRC Proceedings: What are the other requisites for the perfection of an appeal?
- The appeal should be under oath.
- Proof of payment of appeal fee.
- Proof of posting of a cash or surety bond.
- Must be accompanied by a memorandum of appeal which shall state the grounds relied upon and the supporting arguments.
- A statement of the date when the appellant received the appealed decision or award.
- Proof of service on the other party of such appeal.
NLRC Proceedings: How much is the appeal fee?
An appeal fee of one hundred and ten (P110.00) pesos must be paid by the appellant to the Regional Arbitration Branch, DOLE Regional Office or the POEA.
NLRC Proceedings: When is a bond required in an appeal?
In case the decision of the Labor Arbiter, POEA Administrator and DOLE Regional Director or his duly authorized hearing officer involves monetary award.
NLRC Proceedings: Can an appeal for decisions involving monetary award be perfected without posting a bond?
An appeal by the employer shall be perfected only upon posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission or the Supreme Court in an amount equivalent to the monetary award.
NLRC Proceedings: What is the period to resolve the appeal?
The appeal from the decision, order or reward of the Labor Arbiter and POEA Administrator shall be resolved by the Commission within 20 calendar days from receipt of the answer of the appellee or upon the filing of the last pleading or memorandum.
In case of an appeal from the decision of the DOLE Regional Director or his duly authorized hearing officer, it shall be resolved within 10 calendar days.
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