LEGAL ASPECTS IN TOURISM
& HOSPITALITY
Prepared by:
ATTY. CARMIE TATOY DOLORICA
Labor Laws- The Actual Workplace
Labor Law
It includes all the rules of law governing the conditions under which
persons may work under the control of other persons called employer.
Relevant to this are the concepts of labor standards and labor relations
laws governing hours of work, weekly rest periods, minimum wage
rates, unfair labor practices, strikes and lockouts.
Labor Standards
Labor standards prescribe the terms and conditions of employment as
affecting wages or monetary benefits, hours of work, cost of living
allowances, occupational health, safety and welfare of the workers.
Labor Relations
Labor Relations is used to denote all matters arising out of employer-
employee relationship involving the concerted action on the part of the
workers which is usually related with collective bargaining and
negotiation process.
Social Legislation
Germane to Labor Standards and Labor Relations is the Social
Legislations Law which is governing the employer-employee
relationship while the employee is “not at work” due to hazards arising
from employment. It is actually designed to uplift and protect the
welfare ofthe worker and his family because of the hazards beyond his/
her control which immobilize him/her from working.
Classification of Labor Laws
1. Protective Legislation
It is designed to protect the weaker party to the employment
contract (e.g. Anti-Sexual Harassment Laws, Child Labor Laws,
Laws protecting Women Against Discrimination)
2. Welfare or Social Legislation
It is intended to remove or reduce the insecirity of the workers
while the latter is not at work due to hazards arising from
employment (e.g. SSS Law, GSIS Law, PhilHealth/ R.A. 7875,
Workmen’s Compensation Act)
Classification of Labor Laws
3. Diplomatic Legislation
It is designed to settle labor disputes through negotiations (e.g.
laws providing for a conciliation, mediation, grievance machinery
or arbitration)
4. Administrative Legislation
It creates labor bodies or agencies for administrative purposes
(e.g. POEA, DOLE, NLRC, TESDA)
Classification of Labor Laws
5. Labor Relations Legislations
These prescribe minimum requirements relating to wages, hours
of work, cost of living allowances, and other monetary and
welfare benefits including occupational, safety and health
standards.
6. Labor Standards Legislations
Significant Constitutional Provisions Touching
Work
The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to
security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just
share in the fruits of production and the right of enterprises to reasonable returns to investments, and to
expansion and growth. (Section 3, Article XIII of the 1987 Constitution)
Relationship Determinants Between Employer and
Employee
1. Manner of selection and engagament of the employee;
2. Mode of payment of wages;
3. Presence of or absence of the power of dismissal;
4. Presence or absence of a power to control the employee’s conduct.
Nature of the Relationship between ER and EE
Article 315, NCC provides that the rights and obligations arising from
EE-ER relationship are contractual in character. In that connection, the
parties are bound not only to the fulfillment of what has been expressly
stipulated but also to all other consequences which, according to their
nature, may be in keeping with good faith, usage and law.
Nature of the Relationship between ER and EE
Article 1700 however provides that the relations between capital and
labor are not merely contractual. They are so impressed with public
interest that labor contracts must yield to the common good. Such
contracts are subject to the special laws on labor unions, collective
bargaining, strikes and lockouts, closed shop, wages, working
conditions, hours of labor and similar subjects.
Classification of Employees
1. Special workers
2. Casual Employees
3. Specific Projects or Seasonal Employees
4. Probationary Employees
5. Regular Employees
6. Managerial Employees
Apprentice
A worker who is covered by a written apprenticeship agreement with
an individual employer or any of the entities recognized under this law.
It must be noted that only employers in highly-technical industries may
enter into apprenticeship agreement or otherwise employ apprentices
only in apprenticeable trades and occupations approved by the
Secretary of Labor and Employment.
Highly Technical Industry
Refers to trade, business, enterprise, industry or other activity which
utilizes the application of advance technology.
Apprenticeable Trades and Occupation
Refer to any trade, form of employment or occupation which requires
more than 3 months of practical training on the job with compulsory
related theoretical instructions
Qualifications of Apprentice
1. At least 14 years of age;
2. Possess vocational aptitude and capacity for appropriate test;
3. Possess the ability to comprehend and follow oral and written
instructions.
Learners
These are persons hired as trainees in semi-skilled and other industrial
occupations which are non-apprenticeable and may be learned through
on-the-job trainings in a relatively short period of time that shall not
exceed 3 months.
Handicapped Workers
Those workers who are impaired either by age, physical or mental
deficiency, or injury.
Apprentices v. Learners
APPRENTICES LEARNERS
They are trained in an apprenticeable occupation. They are trained in non-apprenticeable occupation.
Employers who avail the tax deduction scheme pay in They are always paid at not less than 75% of the
their apprentices minimum wage instead of not less applicable minimum wage.
than 75% of the applicable minimum wage.
If the training is a prerequisite to graduation or a A learner employed in piece or incentive-rate jobs
requirement in taking the government board during the training period is paid in full for the work
examination, the hiring of apprentices without done.
compensation is authorized.
Apprentices may be employed even when there are Learners may be employed only when there are no
experienced workers available. experienced workers available, the purpose of which
is to preclude curtailment of job opportunities.
Types of Employment
1. Regular or Permanent Employee
2. Term or Fixed Employment
3. Project Employment
4. Seasonal Employment
5. Casual Employment
Regular Employees
These are employees who perfom activities, which are necessary or
desirable in the usual business or trade of the employer. Any employee
who has rendered at least one (1) year of service, whether such service
is continuous or broken, will be considered a regular employee with
respect to the ativity in which he/she is employed his/her employment
will continue while such activity exists.
They enjoy the benefit of security of tenure provided by the Philippine
Constitution and cannot be terminated for causes other than those
provided by law, and only after due process is given to them.
Term or Fixed Term Employment
The service of the employee to the employer is for a definite period of
time which in effect must be terminated upon the expiration or end of
the said period. The employment of this type is measured by the
commencement and termination of the employment relationship and
not by the activities the employee is expected to do.
The fixed-term employment must be highly regulated subject to the
following conditions:
1. The parties must knowingly and voluntarily agree on the contract
without any vices of consent, not attended by any force, duress or
improper pressure.
2. It must be established the dealing with each other of the employer
and the employee on more or less equal terms with no dominance
exercised by the former over the latter.
Project Employment
When one employee is hired for a specific undertaking in which
employment duration is specified by the scope of work and/or length
of the project. The status of a regular employment may be achieved by
a project employee when there is a continuous rehiring of same
employee after a projects has been completed or when the tasks they
perform are vital, necessary, and indespensable to the usual business
or trade of the employer.
Seasonal Employment
The employment is only for a certain time or season of the year and
the employment is only for that specific duration.
Casual Employment
This pertains to the kind of employment that is not usually necessary or
primarily related to the employer ’s trade. The obligation of the
employer over ther employees terminate as soon as the contract
expires. It is important to discuss with the employee the specific period
of employment at the time they assume their work. One (1) year of
service whether continuous or not is tantamount to regularization of
employment with respect to the activity they are employed.
Managerial Employees
Those whose primary duty consists of the management of the
establishment in which they are employed or of a department or
subdivision thereof, and to other officers or members of the
managerial staff.
Managerial Employees
1. He/she is primarily managing the establishment in which he/she is
employed or of a department or subdivision thereof;
2. He/she customarily and regularly directs the work of two or more
employees therein; and
3. He/she has the authority to hire or fire other employees of lower
rank.
Domestic Servant
These are persons in the personal service of another and those who
perform services in the employer’s home which are usually necessary
or desirable for the maintenance and employment thereof, or minister
to the personal comfort, convenience or safety of the employer as well
as the members of his or her employer’s household.
Field Personnels
Refer to non-agricultural employeer who regularly perform their duties
away from principal place of business or branch office of the employer
and whose actual hours of work in the field cannot be determined with
reasonable certainty.
The WORKER’S RIGHTS
1. Right to Self-Organization;
2. Right to Collective Bargaining;
3. Right to Security of Tenure;
4. Right to just and humane conditions of work. This refers to fair wages
and equal remuneration for work of equal value, safe and healthy
working conditions, equal opportunity to promotion and rest, leisure
and reasonable limitation of working hours, such as:
4.1. The right to regular working hours
The WORKER’S RIGHTS
4.2. The right to regular working days
4.3. The right to overtime work
4.4. The right to weekly rest period
4.5. The right to additional compensation on scheduled rest day/
special holiday
4.6. The right to compensation for holiday work
4.7. The right to hospitalization
The WORKER’S RIGHTS
5. Right to peaceful concerted activities
6. Right to strike
7. Right to a living wage
8. Right to participate in policy and decision-making processes
9. Right to just share in the fruits of production
Right to Self-Organization
The right of both workers and employees to form, join or assist unions,
organizations or associations for purpose of collective bargaining and
negotiation and for mutual aid and protection. It also deals with the
right to engage in peaceful concerted activities or to participate in
policy and decision-making processes affecting their rights and benefits.
Security of Tenure
This means that an employee cannot be dismissed from the service for
causes other than those provided by law and only after due process is
accorded to employee.
Even if probationary employees do not enjoy a status of permanency,
they are still accorded with the constitutional protection of security of
tenure.This means that they may only be terminated for just cause or
when they otherwise fail to qualify as regular employees in accordance
with reasoble standards made known to them by the employer at the
time of their engagement.
Protected Concerted Activity
It is a legal principle covered by the freedom of association. It defines
the activities that the workers may participate without fear of
retaliation from the employer.
Strike
This refers to the temporary stoppage of work due to the refusal of the
employees to work as a way of protest to the decision of the employers
on matters affecting the employees.
The right to strike does not cover illegal strikes. The strike is legal if the
conduct is for economic reasons or to protect an unfair labor practice
by the employer.
Rights of Employer
1. Reasonable return on investment
2. Expansion and growth
3. Exercise management prerogative
3.1. To lay down and execute management policies
3.2. to hire
3.3. to transfer
3.4. to discipline
3.5. to dismiss
Rights of Employer
3.6. Retrenchment- It exists during the period of business
recession, industrial depression, or seasonal fluctuations;
3.7. To declare redundancy- It exists where the services of an
employee are in excess of what is reasonably demanded by the
actual requirements of the enterprise;
3.8. To cease operations- The management may cease business
operations or undertaking even if it is not suffering from serious
business lossess or financial reverses as long as he/she pays his/
h e r e m p l o y e e s t h e i r t e r m i n a t i o n p ay i n t h e a m o u n t
corresponding to their length of service.
Rights of Employer
3.1. To sell the company
3.2. to abolish positions
Termination of Er-EE Relationship
An employer cannot terminate the service of an employee except for
just or authorized causes provided under the Labor Code of the
Philippines.
Termination of Er-EE Relationship
On the other hand, the employee may initiate the termination of
employment contract even without justifiable cause, provided that a
written notice shall be served to the employer 1 month in advance.
However, he/ she may terminate employment relationship without
serving notice on the employer for just causes provided under the
Labor Code.
Just Causes
These are modes of termination of employment contract imputable to
the employees own acts or omissions. For any of these grounds to
warrant the termination of employee’s contract, the elements of
graveness and seriousness must be present.
Just Causes
1. Serious Misconduct or Willful Disobedience by the employee of the
lawful orders of the employer or representative in connection with his/
her work;
2. Gross Habitual Neglect by the employee of his/ her duties;
3. Fraud or Willful Breach by the employee of the trust reposed in him
by his employer or duly authorized representative;
4. Commission of a crime or offense against the person of his employer
or any immediate member of his/her family and his/her duly
authorized representative.
5. Other causes analogous to the foregoing.
Authorized Causes
The causes for the termination of employment contract should not be
imputed neither of the employees and employers. The termination of
employment contract is allowed by law since it recognizes the right of
the employers to legitimately decrease labor costs and other
circumstances inevitable in the management of business.
Authorized Causes
1. Redundancy- It exists when the srvices of the employee are in excess
of what ys reasonably demanded by the actual requirements of the
enterprise.
2. Retrenchment- It means reduction in the workforce to forestall
business losses or stop the hemorrhaging of capital.
3. Installation of Labor Saving Device
4. Closure or Cessation of operation of the establishment or
undertaking due to finncial losses.
• READ: REPUBLIC ACT NO. 7877 ( ANTI-SEXUAL HARASSMENT ACT)
