2023 has opened up with a lot of interesting discussions about workers’ rights. This is encouraging, because employees standing up for themselves can be indicative of passionate and industrious qualities. Ongoing cordial conversations between workers and their employers have the potential to improve employee conditions and efficiency overall. This quick guide will serve as a primer for some of the more specialized labor laws in the Philippines, including those relating to Undertime and Non-Compete Clauses.
Undertime
Beyond the typical eight hours a day an employee can work, they’re usually paid 1.25 times for each additional hour on normal days, or at least 1.3 times that rate on holidays. Barring extraordinary circumstances, such as war, the potential for catastrophic loss of life or property, or a narrow window of optimization such as favorable environmental conditions for agricultural processes among others detailed in Section 10, Rule I, Book III of Omnibus Rules Implementing the Labor Code, employees are not obligated to perform overtime. That much is to be expected.
A lesser known labor law of the Philippines as seen in that same book is that Undertime is not offset by Overtime. Which is to say that overtime does not bulwark an employee against or compensate for hours missed from coming late, leaving early, or being absent without leave or any sort of warning from their place of employment. They are still liable to any penalties, even if cumulative overtime would numerically offset their total undertime.
Extending Probationary Employment
Typically, not possible. Six months is the maximum for probationary employment for regular employee consideration. There are a handful of exceptions: if the work is covered by an apprenticeship agreement, when the work is covered by special laws, if parties to the contract agree otherwise, or in a very rare situation, if it’s extended to give the employee a chance to improve their skills further and demonstrate their fitness for regular employment as seen in Mariwasa Manufacturing, Inc. vs. Leogardo, 26 January 1989. It should be noted that whether the situation falls under the purview of these exceptions is incumbent on the employer.
Non-Compete Clause Exceptions
The Non-Compete Clause presents some worrying obstacles to those in-between jobs, for both employees and employers. These clauses do not necessarily bar a worker from engaging in their work of expertise entirely. Legally, they cannot inflict total restraint of trade, as seen in G. Martini, Ltd. V. Glaiserman. There, the company attempted to prohibit Glaiserman from engaging in any business similar any of its multifarious activities for a year, but the court ruled in favor of Glaiserman. It was cited that the clause was too broad for an employee who was just involved in purchase and exporting in one of its departments to be blocked off from working in the other industries he had no hand in.
Inversely, the labor laws of the Philippines can allow for a lot of restrictions to be legally placed on an former employee, including those relating to time, location, and processes, so long as they have some means of conceivably providing for themselves if not necessarily in a way similar to their former vocation. A prospective employee would do well to sit down and discuss with their potential employer what constitutes as “non-competition” before signing their contracts.
Employers who hire an employee in such a circumstance that it violates their non-compete clause, that can constitute as unlawful interference. While an employer being completely clueless of the clause can exempt them from this, such carelessness is rarely looked fondly upon. This isn’t to say that employers should automatically dismiss applicants who are under non-compete clauses, especially if they’re of exceptional quality. Rather, they should take the time to determine if that non-compete agreement is valid against the role they want filled.
Direct-Hiring of Overseas Workers
Whether an employer is local or overseas, they are prohibited from hiring Filipino workers for overseas employment. Unless the prospective employer is part of a diplomatic corps, certain international organizations, a head of state or a government official with a rank of a deputy minister or higher, or an entity otherwise endorsed by the Philippine Overseas Labor Office, then the law stated on Article 18, P.D. 442 of the Labor Code of the Philippines applies to them.
On the potential employee side, they should make sure that even an employer that fits the above criteria stays true to the Employment standards they’re owed, including compulsory insurance coverage and concrete information about the place of business and the role therein.
It is advised that if a Filipino is looking for overseas work, they should pursue it through a duly licensed private employment agency.
We at John Clements make sure to provide our candidates with opportunities that adhere to both fundamental and specialized labor laws of the Philippines. That goes double for prospective employers. Jobseekers can find such quality roles here. And we have superb selection of staffing services, including those relating to the aforementioned Overseas Recruitment sector, for potential clients here.
