The Department of Labor and Employment (DOLE) on Monday reminded employers to abide by the pay rules for the Holy Week holidays.
Maundy Thursday (March 2 and Good Friday (March 29) have been declared regular holidays and Black Saturday (March 30) is a special nonworking day.
“I reiterate to the private sector employers to observe pay rules and other core labor and occupational safety and health standards during these holidays in the interest of the workers’ welfare and protection,” said Labor Secretary Rosalinda Baldoz in a statement.
“If the employee reports for work during a regular holiday, he shall be entitled to 200 percent of his regular pay for that day for the first eight hours, and for work in excess of the eight hours, an additional 30 percent of his hourly rate,” Baldoz said.
If the day falls on an employee’s rest day and he goes to work, he shall be paid an additional 30 percent of his daily rate of 200 percent. For work in excess of eight hours on those days, he gets an additional 30 percent of his hourly rate.
“If the employee does not render work during a regular holiday, he is still entitled to 100 percent of his salary for that day,” Baldoz said.
On the other hand, she said, during a special nonworking day, the principle of “no work, no pay” applies, “unless there is a favorable company policy, practice or collective bargaining agreement granting payment on a special day.”
“If the employee works, he shall be paid an additional 30 percent of his daily rate for the first eight hours of work. For work in excess of eight hours, he will get an additional 30 percent of his hourly rate on said day,” she said.
If the day falls on his rest day and he goes to work, he shall be paid an additional 50 percent of his daily rate for the first eight hours of work. For work in excess of eight hours, he gets an additional 30 percent of his hourly rate, Baldoz said.
Lawyers and economic development, or why we stumble oftentimes
CROSSROADS (Toward Philippine Economic and Social Progress) By Gerardo P. Sicat (The Philippine Star) | Updated March 27, 2013 - 12:00am
The announcement of the list of new lawyers – law students who took the bar examinations and passed – is one of the most awaited events concerning the profession. Newspapers in the country give this event prominent coverage and use it to twit the competition between the country’s top law schools.
Although not as heavily discussed, the percentage of failures of such exams is high. This year’s passing rate is 17 percent, which means 83 percent of those who took the bar did not pass. The average passing rate has been around 25 percent, so that from year to year, 75 percent of those who want to become lawyers actually fail in their ambition.
“Lawyers, litigations, lobbyists, legal processes.” Even as the law is a very select profession and lawyers are needed wherever laws and regulations are written, a relevant question that can be asked is, Do we have too many lawyers in this country?
Another important question is, do we train them sufficiently so that they acquire the learning tools to understand society’s problems and the nature of economic markets?
Lawyers are needed to enable society to adopt the appropriate legal frameworks, the rules and the proper interpretation of the spirit of the laws so that the nation achieves forward motion – progress, reform, and fulfillment for its citizens. A growing economy is needed to solve the nation’s social and economic ills. That includes an understanding of markets and how they function.
Lawyers are needed by enterprises, companies, and individuals to preserve or enhance the benefits derived from the provisions of laws and regulations. Governments hire lawyers to help advance society’s laws and to enable their proper administration.
When economic reforms are proposed, those who could lose from the change protect their gains vehemently. Groups that benefit most from declining institutions or arrangements will expend resources to resist change. This explains why economic reforms are often very difficult to pursue.
It goes without saying that lawyers will do their utmost to defend and advance the interests of those who hire them. Threatened interest groups will do so as long as the benefits exceed the costs of the actions. Lobbying, and predatory tactics, sometimes even of corruption, could result from such efforts.
In addition to the legal framework and the courts, lawyers are crucial to the resolution of legal disputes. Lawyers are the active agents for interpreting the law for their clients. Dispute resolutions often involve the ownership of property rights (assets such as land, capital, permits, patents, goodwill, brands, and so on).
The resolution of such disputes invariably implies the transfer of questioned property rights. To the winners come the rewards, and often, the rewards are significant for the lawyers. This is one reason for their high supply.
Disputes are inevitable in society, but too many disputes often hinder progress, economic and otherwise. Hence, less disputes encourages more development.”
When “restrictions” or “special access” are made the rule in favor of “tolerance or openness for all participants;” when regulated activities are preferred to market based resolutions of disputes; when “monopolies” or “solutions favoring a few” are preferred to institutions supporting greater competition among economic participants, then the economic system is prone to the presence of more legal disputes and raises the cost of doing business.
“A litigious society that raises economic costs for all.” Some time ago, I wrote a paper entitled, “Legal and constitutional disputes and the Philippine economy.” This paper was later published in the Philippine Law Journal (vol. 87, December, 2007). It described the litigious character of Philippine society that has affected seriously the manner in which the country’s economic affairs are guided. The original sin in this setup was the introduction of the restrictive economic provisions in the Philippine Constitution in 1935 and reaffirmed as well as expanded in 1987.
The litigious character in society has created stalemates, setbacks and mis-directions of the Philippine economy, both in large as well as in small business affairs that affect everyone.
It is possible to settle small cases when property rights and contracts are followed. Yet, small cases do not get settled at the neighborhood (barangay) level. Often such cases get elevated to the metropolitan courts where they essentially get unresolved. Standards of contract fulfillment give way to a surfeit of tactics to delay and further delay the movements.
Of course, there are much bigger affairs in which “constitutionality” issues reach the Supreme Court. There have been many such cases that have hindered the country’s forward motion in industrial and commercial development. Decisions of the Supreme Court, when they become final resolutions of existing issues, could determine the extent to which the nation is allowed to move forward or to step backward. In many cases in the past, the country had stepped backward.
“The optimum number of lawyers: an issue for all nations?” An interesting paper to ponder about is that of Stephen Magee (“The optimum number of lawyers,” Department of Economics, University of Texas, November 2010).
The author is steeped in the field of public choice economics. His studies include big questions on the reform of the legal profession in the context of economic growth and, in particular, the US economy. Using a data base of around 40 countries, this study tried to find answers to the relationship of number of lawyers to the nation’s economic growth.
His international data shows a negative linear relationship between lawyers as a presence in the lower houses of parliament. Though this finding is not statistically strong, he speculates on the basis of nuanced analysis of the problems of “rent-seeking” that is prevalent in many countries. His data set does not include the Philippines, but includes many Asian economic neighbors, like Japan, Korea, Malaysia, Singapore, Hong Kong, China and so on.
In his data, the US has four times as many lawyers as the average for the countries in his data set. The relative number of lawyers (lawyers per thousand population; lawyers as percent of parliament members; lawyers ratio-to-physicians) in the Philippines is likely to be closer to that of the US than in any of the countries enumerated above.
You get what you give: Reevaluating tax exemptions of non-profit hospitals
TOP OF MIND
By Ma. Arlene S. Borja
(The Philippine Star) | Updated April 2, 2013 - 12:00am
Several researches have shown that being ‘charitable’ benefits not only the receiver but also the giver. Aside from the proven emotional and health benefits, charity has a tangible tax benefit. In fact, no less than the Philippine Constitution rewards charity by giving tax exemptions on real properties of charitable institutions which are actually, directly, and exclusively used for such purpose. In addition, Section 34 of the National Internal Revenue Code (NIRC) allows contributions to charitable institutions as deductions from gross income. Probably the most rewarding provision of all is that provided in Section 30 of the NIRC exempting charitable institutions from income tax.
Thus, Revenue Memorandum Circular (RMC) No. 4-2013, requiring proprietary non-profit hospitals to submit a request for revalidation of their tax-exempt status and invalidating all rulings issued prior to Nov. 1, 2012 granting them tax exemption, was not welcomed with open arms by the covered institutions. The Bureau of Internal Revenue (BIR), however, justifies the circular invoking the ruling by the Supreme Court in the case of Commissioner of Internal Revenue v. St. Luke’s Medical Center (Sept. 26, 2012).
In the said case, St. Luke’s Medical Center which enjoyed tax exemption under Section 30(E) of the NIRC was ordered to pay income taxes on services rendered to paying patients as these were considered as activities conducted for profit.
The Supreme Court said that with the introduction of Section 27(B) in the 1997 National Internal Revenue Code (NIRC), proprietary non-profit educational institutions and proprietary non-profit hospitals will be subject to the 10-percent preferential rate instead of the ordinary 30-percent corporate rate under the last paragraph of Section 30.
The Court explained that “proprietary” means private and “non-profit” means no net income or asset accrues to or benefits any member or specific person, with all the net income or asset devoted to the institution’s purposes and all its activities conducted not for profit. However, the Court clarified that “non-profit” does not necessarily mean “charitable”. It adopted the definition of “charity” in the Lung Center of the Philippines v. Quezon City case as “a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds and hearts under the influence of education or religion by assisting them to establish themselves in life of otherwise lessening the burden of government.”
A charitable institution is not automatically entitled to a tax exemption. The Court declared that under Section 30(e) of the NIRC a charitable institution must be: (1) a non-stock corporation or association; (2) organized exclusively for charitable purposes; (3) operated exclusively for charitable purposes; and (4) no part of its net income or asset shall belong to or inure to the benefit of any member, organizer, officer of any specific person. The ‘organization’ of the institution refers to its corporate form while ‘operation’ refers to its regular activities. To be exempt from income taxes, both the organization and the operation of the institution must be exclusively for charitable purposes. Therefore, the Court concluded that if a tax exempt charitable institution conducts “any” activity for profit, such activity is not tax exempt even as its not-for-profit activities remain tax exempt.
In light of this ruling, the BIR, through RMC No. 4-2013 now requires all hospitals and non-stock, non-profit organizations operating hospitals to submit a request for revalidation accompanied by (a) a letter application seeking tax exemption under a specific paragraph of Section 30 of the NIRC; (b) copies of the latest Articles of Incorporation and By-laws duly certified by the SEC; (c) Certificate of Registration with the BIR; (d) Tax Clearance issued by the Revenue District Office where the corporation is registered; (e) Copies of Income Tax Returns or Annual Information Returns and Financial Statements for the last three years; and (f) a statement of its modus operandi stating therein its sources of revenues.
The request shall be submitted to the Revenue District Office where the organization is registered which shall determine whether the organization qualifies as an exempt corporation under Section 30 of the NIRC. If the RDO finds that the organization is qualified to be tax-exempt, it shall forward its recommendation to the Office of the Regional Director for review. If The Regional Director agrees with the recommendation, the same shall be forwarded to the Office of the Assistant Commissioner, Legal Division, which will conduct further review, and if in order, shall prepare the appropriate Certificate of Tax Exemption for signature of the Commissioner or her duly authorized representative. These requirements and procedure were set out to ensure uniformity in application since several non-stock non-profit institutions, including St. Luke’s Medical Center, were able to secure tax exemption rulings from the BIR on the ground that they are charitable or social welfare organizations.
Several proprietary non-profit hospitals and non-stock non-profit organizations operating hospitals may claim that this issuance makes it all the more confusing for them because they no longer know where to put their income to make it tax exempt. But looking at it, this circular is based on simple logic: Charitable activities are tax-exempt and Profit-making activities are subject to income tax. Compliance with this circular will help both the covered hospitals know if they are entitled to tax exemption and the BIR to address the loss of revenue from these sources.
Maria Arlene S. Borja is a supervisor from the tax group of Manabat Sanagustin & Co., the Philippine member firm of KPMG International.
MANILA, Philippines—Philippine Airlines (PAL) workers on Tuesday asked the Court of Appeals to reconsider its recent ruling that upheld Malacañang’s decision to back management’s prerogative to lay off 2,600 employees in 2010.
In a 20-page motion for reconsideration, the PAL Employees Association (Palea) cited several grounds for questioning the appellate court’s March 13 ruling.
For one, the union said the management’s reason for outsourcing some services, thereby justifying the mass layoff, was not valid because it “was not done in good faith.”
It argued that the appellate court erred when it ruled that PAL was not violating the law on subcontracting through its outsourcing program.
“As the law stands now, contracting arrangements that result in termination of regular employees are prohibited for being against public policy,” the union said, citing a Department of Labor order (Sec. 7, Department Order No. 18-A, series of 2011).
It said the termination of 2,600 regular employees and members of Palea violated this rule.
The union also held that the outsourcing program of PAL was in the form of illegal labor-only contracting which is prohibited under Section 6 of the same department order.
The union also argued that the grounds that PAL gave for implementing its outsourcing program, such as “serious, irreversible financial losses, recession, FAA delisting and others,” were no longer present to warrant the mass termination of workers.
The union noted that in April last year, San Miguel Corp. signed a $500-million deal to acquire a significant stake of PAL and bought 85 new Airbuses.
The union also decried as an “unfair labor practice” the termination of 70 percent of its membership and 62 percent of the union leadership during the period when collective bargaining negotiations should have been conducted.
In its prayer, Palea sought a reconsideration of the decision and the issuance of a new resolution that would declare the mass layoff illegal and cite PAL management for unfair labor practices.
The layoff was implemented in September 2011 after the Department of Labor, and later Malacañang, upheld PAL management’s prerogative to reorganize its operations.
(The Philippine Star) | Updated May 4, 2013 - 12:00am
The most iconic personification of justice is, without a doubt, that of a blindfolded lady balancing scales of truth and fairness. However, balancing competing interests, attempting to render a “fair” and “just” decision in a complex situation, is easier said than done.
Take the Boston Marathon bombings. It was widely publicized that one of the suspects, Dzhokhar Tsarnaev, underwent about 16 hours of custodial investigation before being read his Miranda rights. During this time, he confessed to the bombings and that the next target was Times Square in New York. The conundrum that legal analysts are now painstakingly examining and which courts will need to confront is whether his statements should be admissible given that he had not been informed of his rights to remain silent and to the assistance of counsel.
On the one hand, there is the fundamental right against self-incrimination, protected by the Fifth Amendment to the US Constitution and, in our case, Article III sections 12 and 17 of the 1987 Constitution (the former being our constitutionalized version of the Miranda rights). On the other hand, there’s the State’s obligation to uphold public safety.
At its core, the Miranda Warning is an expansion of the right against self-incrimination to cover the period of custodial investigation. Recognizing that a suspect is most vulnerable during police interrogation, then Chief Justice Earl Warren created additional protections in the seminal case of Miranda v. Arizona (1966). Hence, before being interrogated, suspects need to be clearly informed of their right to remain silent, that anything they say can and will be used against them in court; that they have a right to an attorney during the questioning, and that if they cannot afford an attorney, one will be provided for them. In short, it sought to guard against the evils of coerced confessions but at the same time protect the integrity of any confession made subsequent to the reading of said rights.
In 1984, 18 years after Miranda v. Arizona, a “public safety” exception was developed. This exception finds its genesis in a 1982 dissent by Sol Wachtler, former chief judge of the New York Court of Appeals, in New York v. Quarles.
The case involved a rape suspect who had fled inside a supermarket. The rape victim approached patrolling officers and directed them to the supermarket. The officers caught the man, identified as Benjamin Quarles, but noticed that he was wearing an empty gun holster. While handcuffed and before being Mirandized (yes, it’s an accepted verb), he was questioned as to the whereabouts of his gun. Quarles then admitted hiding the gun in a nearby milk carton. After securing the weapon, the officers then read him his rights. The issue raised was whether his possession of the firearm should be admitted in evidence as it was obtained pursuant to a statement made prior to the reading of his rights.
The Court of Appeals — New York’s highest court ‑ upheld the rulings in the lower courts that it wasn’t admissible. Judge Wachtler dissented, claiming an “emergency exception” — that police ought to be allowed to defuse a dangerous situation before Mirandizing a suspect. The District Attorney appealed the decision to the Supreme Court and then Associate (later Chief) Justice William Rehnquist wrote a majority opinion embracing the exception for “situations where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda”.
In the Boston Marathon bombing, it can be argued that the statements made by Dzhokhar during his 16-hour interrogation are inadmissible as they were obtained in violation of Miranda. Yet the State will certainly assert that the threat to public safety overrode his rights; that this was precisely the type of situation contemplated by the Quarles exception ‑ an occasion involving “overriding considerations of public safety”. What if he had planted more bombs? Suppose there were other operatives planning to detonate more explosives?
There is a move — started a couple of years ago and supported by the Obama Administration — to introduce legislation allowing investigators to question terrorism suspects without informing them of their rights. (Indeed, investigators then were already pushing the boundaries of Miranda. Umar Farouk Abdulmutallab, the “underwear bomber” who attempted to blow up a flight on Christmas Day 2009, was questioned for nearly an hour without being read his rights. Faisal Shahzad, the suspect in the attempted bombing of Times Square in May 2010, was interrogated for 3 to 4 hours before he was Mirandized.)
Interestingly, former Judge Wachtler wrote a 2010 op-ed piece in the NY Times criticizing the proposed legislation, arguing that Miranda exceptions should only be about resolving immediate emergencies. “To open non-emergency exceptions, like the one proposed by the Obama administration for terrorism suspects, would be to go down a road toward the eventual nullification of the constitutional protection against self-incrimination,” he wrote, “To compromise the rule would be counterproductive and destructive to the kind of freedom we enjoy….”
In truth, it is indeed hard to keep one’s footing on a slippery slope. Creating exceptions to rules safeguarding a fundamental right should always be scrutinized strictly, lest we irreparably injure the right with a bombardment of exceptions.
That said, public safety is a valuable interest which must be factored into the equation. The question however in this case is whether protecting public safety from imminent danger was the real motive, or whether it was a convenient excuse for unwarranted custodial interrogation.
Returning now to the image of Lady Justice ‑ will the scales tip in favor of the right against self-incrimination or the public safety consideration? Whatever the outcome, I am glad for the debate. It contributes to the exposition of rational arguments — an exercise which I believe is necessary for those who love the law to ensure that Lady Justice is just blindfolded for objectivity, not hoodwinked by trickery.
(The Philippine Star) | Updated May 8, 2013 - 12:00am
In paternity cases, the burden of proof is on the person who alleges that the supposed father is the biological father of the child. This is illustrated in this case of Alma.
Alma was a casual employee in a bank where she met Romy who worked as accounting supervisor. Barely three weeks after they met, Romy started courting Alma. In a month’s time, they already became sweethearts. Romy showed his affection through greeting cards on special occasions like Valentine’s Day and Alma’s birthday. Alma reciprocated his affectionate gestures with her care and concern for Romy particularly when he fell ill.
Nine months later Romy and Alma started their intimate sexual relations in a room of a boarding house owned by Alma’s uncle which was rented by Romy. The sexual encounters occurred twice a month and became more frequent. Eventually, after almost a year of relationship, Alma found out that she was pregnant. When told of the pregnancy, Romy even expressed happiness and made plans to marry Alma. They in fact applied for a marriage license while Romy even inquired about the costs of a wedding reception and the bridal gown. Subsequently however, Romy backed out of the wedding plans to the consternation of Alma.
Alma thus filed a suit for damages against Romy for breach of promise to marry. Later however this case was amicably settled by Romy. Eventually Alma gave birth to a baby boy whom she named Sonny. But Romy did not even show up and failed to provide support to Sonny. So Alma filed another complaint against Romy with the Regional Trial Court (RTC) for compulsory recognition and support pendente lite of Sonny.
During the hearing, Alma testified and narrated all the foregoing events. She also presented her uncle who owned the boarding house to corroborate her testimony. While the case was pending the RTC granted a monthly child support of P2,000.
For his defense Romy testified and denied the imputed paternity. While he admitted that he had sexual encounters with Alma, he said it occurred on a much later date such that it was physically impossible for Alma to have been three months pregnant already when he was informed of the pregnancy. However, he failed to substantiate his allegations of Alma’s infidelity and insinuations of promiscuity. Is Alma’s paternity suit meritorious?
Yes. There are four significant procedural aspects of a traditional paternity action that parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and the child. A prima facie case exists if a woman declares—supported by corroborative proof—that she had sexual relations with the putative father; at this point the burden of evidence shifts to the putative father who may show: (1) incapability of sexual relations with the mother due to either physical absence or impotency; or (2) that the mother had sexual relations with other men at the time of conception.
In this case Alma established a prima facie case that Romy is the putative father of Sonny through her testimony that she had been sexually involved only with Romy at the time of her conception. Her uncle corroborated her testimony that Romy and Alma had intimate relationship.
On the other hand, Romy did not deny that he had sexual relations with Alma only that it occurred at a much later date that make it physical impossible for Alma to be already pregnant by him. However, he failed to substantiate his allegations of infidelity and insinuations of promiscuity of Alma. Romy’s denial cannot overcome Alma’s clear and categorical assertions. So Romy should recognize his minor son and give him P2,000 monthly support (Gotardo vs. Buling, G.R. 165166, August 15, 2012, 678 SCRA, 436).
Last edited by Sam Miguel; 05-08-2013 at 09:54 AM.
(The Philippine Star) | Updated May 22, 2013 - 12:00am
This is another case involving an employee placed in a situation where he felt compelled to give up his position, thus raising the issue of whether there was resignation or dismissal.
This case is about Mike, a bank manager in a southern city where he and his family are residing. When major depositors started making huge withdrawals from the branch due to news reports about anomalies involving high ranking officials of the bank, Mike approached Ben who was the bank’s Visayas-Mindanao area head to discuss how to resolve the problem. Ben however told Mike to just brush it aside as it was not a big problem.
But Mike was still very much concerned hence he requested one of the bank’s known big depositors who happens to be the Mayor of a nearby town to talk to Ben. Mike’s move was however misinterpreted by Ben as a form of threat. So the following day Ben angrily confronted Mike and accused the latter of seeking support from the Mayor. He told Mike that he cannot be threatened even if all these depositors immediately pull out their deposits and thus informed Mike right then and there that he will see to it that Mike would be replaced as he himself would manage the branch or place it under the Luzon Area Head so that he will have nothing to do anymore with said branch.
And true enough Ben went to the branch a week later with Mike’s replacement. He then instructed Mike to go to the head office and report to Larry who was the Vice President and Head of the Branch Banking Division. So Mike had to fly to Manila as ordered where Larry told him that he would undergo training. But no such training took place. Instead he was made to do clerical jobs. And since he was just staying in a rented house far from the head office, at least half of his travel and living expenses were consumed by daily 4 hour commuting. So after three months of work in the head office, Mike had to tender his resignation and subsequently filed a complaint for illegal constructive dismissal.
The bank however insisted that Mike voluntarily resigned and was not constructively dismissed. They contended that his transfer was not done unceremoniously and was not motivated by bad faith but pursuant to a valid order to undergo Branch Head Training for gross inefficiency. Furthermore, they claimed that his transfer did not entail any change in rank and compensation and was in accordance with his employment contract under which he can be given a different assignment anytime. In fact after his branch training he was assigned to a task force in charge of reconciling all book entries of all the branches, the bank contended. Was the bank correct?
No. In constructive dismissal cases, the employer has the burden of proving that the transfer of an employee is for valid and legitimate grounds such as genuine business necessity. The employer must be able to show that such transfer is not unreasonable, inconvenient or prejudicial to its employee. Failure to discharge this burden makes the employee’s transfer a constructive dismissal.
In this case, the bank failed to discharge this burden. Its combination of harsh actions rendered Mike’s employment condition hostile and unbearable. First of all it failed to show any urgency or genuine necessity to transfer Mike who was able to prove the actual motive and bad faith behind his transfer by virtue of the bank’s failure show that he had a record of gross inefficiency.
Secondly, Mike’s transfer is clearly unreasonable, inconvenient and oppressive since Mike and his family, are residents of another city in the south. He was placed in the very difficult predicament of having to choose between living away from his family or bringing them to Manila which entails additional expenses.
Third, there was no valid reason why it had to require Mike to go to the Head Office for branch training when it could just have required him to undertake the same training in the Vis-Min area.
And finally, there was nothing in the order of transfer as to what position Mike would occupy after his training thereby effectively placing him on a “floating status”. His assignment to a position that entails reconciling of book entries for all branches which is essentially an accounting task is totally different from the alleged branch training he was made to undergo.
Based on these factual considerations, Mike was indeed constructively and illegally dismissed because of the hostile and unreasonable working conditions in the bank. He should be reinstated to his former position without loss of seniority and with back wages (Philippine Veterans bank vs. NLRC and Martinez , G.R. 188882, March 30, 2010)