|
Republic of the Philippines
Department of Labor and Employment
National Wages and Productivity Commission
REGIONAL TRIPARTITE WAGES AND PRODUCTIVITY BOARD
Caraga Region
Butuan City
RULES AND REGULATIONS IMPLEMENTING
WAGE
ORDER NO. RXIII-08
Pursuant
to Section 6, Rule IV of the Amended Rules of Procedure On Minimum Wage
Fixing, and Section 20 of Wage Order No. RXIII-08, the following Rules
are hereby issued for the guidance and compliance by all concerned in
the Caraga Region.cralaw:red
RULE I
GENERAL PROVISIONS
Section
1. TITLE.This
Rule shall be known as “The Rules
and Regulations Implementing Wage
Order No. RXIII-08
”
.
Sec. 2. DEFINITION OF TERMS –
as used in this Rules.
a. RA 6727 – refers to the
“Wage Rationalization Act”.
b. RA 8188 – refers to the
“Act Increasing the Penalty and Imposing Double Indemnity for Violation
of the Prescribed Increases or Adjustment in the Wage Rates”.
c. RA 9178 - refers to the
“Act that Promotes the Establishment of Barangay Micro Business
Enterprise (BMBE)”.
d. DEPARTMENT – refers to the
Department of Labor and Employment.
e. COMMISSION – means the
National Wages and Productivity Commission.
f. BOARD – means the Regional
Tripartite Wages and Productivity Board
No. XIII.
g. CARAGA REGION – covers the
Provinces of Agusan del Norte, Agusan del Sur, Surigao del Norte,
Surigao del Sur, Dinagat Island, and the Cities of Butuan, Surigao,
Bislig, Cabadbaran, Bayugan, and Tandag.
h. CERTIFICATE OF AUTHORITY -
is the Certificate issued by the city or municipal treasurer to
registered BMBEs pursuant to RA 9178.
i. AGRICULTURE – refers to
farming in all its branches, including cultivation and tillage of soil,
production, growing and harvesting of agricultural and horticultural
commodities, dairying, raising of livestock or poultry, the culture of
fish and other aquatic products in farms or ponds, and any activities
performed by a farmer or on a farm as an incident to or in conjunction
with such farming operations. This does not include the manufacturing
and/or processing of sugar, coconut, abaca, tobacco, pineapple, aquatic
or other farm products.
j. PLANTATION AGRICULTURE –
is one engaged in agriculture with an area of more than 24 hectares in
a locality or which employs at least twenty (20) workers. Any other
agricultural enterprise shall be considered non-plantation.
k. ESTABLISHMENT – refers to
an economic unit which engages in one or predominantly one kind of
economic activity at a single fixed location.
For purposes of determining eligibility for exemption, establishment
under the same owner/s but separately registered with the Securities
and Exchange Commission (SEC), Office of the City/Municipal Mayor,
Department of Trade and Industry (DTI) or Cooperative Development
Authority (CDA), as the case may be, irrespective of their location,
shall be treated as individual and distinct establishment.
l. MULTI PURPOSE COOPERATIVE-
is one that combines two or more of the business activities of the
different types of cooperative defined under RA 6938 otherwise known as
Cooperative Code of the Philippines.
m. BARANGAY MICRO BUSINESS
ENTERPRISE – refers to any registered entity or enterprise granted a
Certificate of Authority under RA 9178.
n. DISTRESSED ESTABLISHMENT –
refers to establishment, which meets the criteria enumerated in Sec. 3
(A) of NWPC Guidelines No. 02, series of 2007.
o. RETAIL ESTABLISHMENT –
refers to an entity principally engaged in the sale of goods to end
user for personal or household use. A retail establishment that
regularly engages in wholesale activities loses its retail character.
For purposes of these Guidelines, retail establishment must be
regularly employing not more than 10 workers.
p. SERVICE ESTABLISHMENT –
refers to an entity principally engaged in the sale of services to
individuals for their own or household use and is generally recognized
as such. For purposes of these Guidelines, service establishment must
be regularly employing not more than 10 workers.
q. BASIC WAGE – means all
remuneration or earnings paid by an employer to a worker for services
rendered on normal working days and hours but does not include Cost of
Living Allowances, profit-sharing payments, premium payments, 13th
month pay, or other monetary benefits which are not considered as part
of or integrated into the basic salary of the workers on the date the
Wage increase became effective.
r. MINIMUM WAGE RATE – is the
lowest wage rate that an employer can pay his worker as fixed by the
Board.
s. WAGE DISTORTION – means a
situation where an increase in prescribed wage rates results in the
elimination or severe contraction of intentional quantitative
differences in wage or salary rates between and among employee groups
in an establishment as to effectively obliterate the distinction
embodied in such wage structure based on skills, length of service or
other logical basis of differentiation.
t. ORDER – means Wage Order
No. RXIII-08.
u. CAPITAL IMPAIRMENT- refers
to the diminution of capital due to accumulated losses.
v. STOCKHOLDER’S EQUITY –
refers to the residual interest in the assets of an entity that remains
after deducting its liabilities. It is total assets minus total
liabilities. It is the same as equity and net worth.
w. FULL ACCOUNTING PERIOD -
refers to a period of twelve (12) months or one year of business
operations.
x. INTERIM PERIOD - refers to
a financial reporting shorter than a full financial year (most
typically a quarter or half-year).
y. DEFICIT- refers to the
negative balance of the retained earnings account of a corporation.
Retained earnings represent the accumulative balance of periodic
earnings, dividend distributions, prior period adjustments and other
capital adjustments.
z. TOTAL ASSETS - refer to
things of value owned by the business such as cash, machines, building
and land which can be measured or expressed in money terms.
aa. NET LOSS – refers to
actual loss suffered by a company after deducting expenditures
including overhead and interest charges from revenues.
bb. FINANCIAL STATEMENT –
refers to a written report which quantitatively describes the financial
health of the company. This includes the following: balance sheet,
income statement, statement of changes in equity, cash flow statement
and notes to financial statement.
cc. STOCK CORPORATION –
refers to one organized for profit and issues shares of stock to its
members.
dd. NON-STOCK NON-PROFIT
CORPORATION – refers to one organized principally for public purposes
such as charitable, educational, cultural or similar purposes and does
not issue shares of stock to its members.
ee. PARTNERSHIP –
refers to an association of two or more persons who bind themselves to
contribute money, property, or industry to a common fund with the
intention of dividing the profits among themselves or for the exercise
of a profession.
ff. SINGLE
PROPRIETORSHIP – refers to a business unit owned and controlled by only
one person.
gg. COOPERATIVE –
refers to a duly registered association pursuant to R.A. 6938
(Cooperative Code of the Philippines) and other laws.
hh. NEW BUSINESS
ENTERPRISES – refer to establishments, including non-profit
institutions, established with two (2) years from effectivity of the
Wage Order based on the latest registration with the appropriate
government agency such as SEC, DTI, CDA and Mayor’s Office.
ii. QUASI-BANKS – refer
to institutions such as investment houses and financing companies
performing quasi-banking functions as defined by the Bangko Sentral ng
Pilipinas.
jj. CONSERVATORSHIP –
refers to a remedy resorted to by the monetary board in case a Bank or
quasi-bank is in state of continuing inability or unwillingness to
maintain condition of liquidity deemed adequate to protect the
interests of the depositors and creditors. A conservator is appointed
to manage the establishment in order to restore its viability.
kk.
RECEIVERSHIP/LIQUIDATION – refers to a remedy resorted by the Monetary
Board in case a bank or quasi-bank is (a) unable to pay its liabilities
as they become due in the ordinary course of business; (b) has
insufficient realizable assets as determined by the Bangko Sentral ng
Pi9lipinas to meet its liabilities; (c) cannot continue in business
without involving probable losses to its depositors or creditors; (d)
has willfully violated a cease and desist order under Sec. 37 that has
become final involving acts or transactions which amount to fraud or
dissipation of the assets of the institution.
ll. UNDER CORPORATE
REHABILITATION – refers to establishment that is placed under a
rehabilitation receiver by a court of competent jurisdiction.
RULE
II
NEW MINIMUM WAGE RATES Section
1. COST OF LIVING ALLOWANCE (COLA)
Effective November
07, 2007, the TWELVE
PESOS (Php12.00) daily Cost of Living Allowance granted under Wage
Order No. RXIII-07, shall be increased by SIX PESOS (Php 6.00) per day.
Sec.
2. MINIMUM WAGE RATES
Effective November
07, 2007, the daily
minimum wage rates applicable to covered workers and employees in the
private sector in Caraga Region shall be as follows:
DAILY MINIMUM WAGE
RATES (DMWR) under WAGE ORDER NO. RXIII-08
|
INDUSTRY/SECTOR |
MINIMUM
WAGE RATES UNDER W.O. NO. RXIII-07 |
COLA
under W.O. No. RXIII-08 |
Total
DMWR* |
|
Basic
Wage |
COLA |
|
AGRICULTURE
|
|
|
|
|
|
Plantation
|
P192.00
|
P12.00
|
P6.00 |
P210.00 |
|
Non-Plantation
|
172.00
|
12.00
|
6.00 |
190.00 |
|
NON-AGRICULTURE
|
202.00
|
12.00
|
6.00 |
220.00 |
|
RETAIL
AND SERVICE
|
|
|
|
|
|
Employing
10 or less
|
172.00
|
12.00
|
6.00 |
190.00 |
|
Employing
more than 10 workers
|
202.00
|
12.00
|
6.00 |
220.00 |
Sec. 3. COVERAGE
The wage increase
prescribed under the
Order shall apply to the minimum wage earners in the private sector in
the region regardless of their position, designation or status and
irrespective of the method by which their wages are paid except
household or domestic helpers, persons employed in the personal service
of another including family drivers, and workers in the registered
Barangay Micro Business Enterprises with Certificates of Authority in
accordance with RA 9178.
Sec.
4. BASIS OF PAYING MINIMUM WAGE
The minimum wage
rates prescribed under
this Order shall be for the normal working hours, which shall not
exceed eight (8) hours work a day.
Sec.
5. APPLICATION TO PRIVATE EDUCATIONAL INSTITUTIONS
In the case of
private educational
institutions, the share of covered workers in the increase in tuition
fees for School Year 2007-2008 shall be considered as compliance with
the increase prescribed herein. However, payment of any shortfall shall
be covered starting School Year 2008-2009.
Those
which have not increased their tuition fees for the School Year
2007-2008 may defer compliance with the provisions of this Wage Order
until the beginning of School Year 2008-2009.
In
any event, all private educational institutions shall implement the
minimum wage rate prescribed herein starting School Year 2008-2009.
Sec.
6. APPLICATION TO CONTRACTORS
In the case of contracts for construction
projects and for security, janitorial and similar services, the
prescribed increases in the wage rates of the workers provided under
this Order, shall be borne by the principals of the
construction/service contractors.
Any
contract to this effect entered into before the effectivity of this
Order shall be considered automatically modified insofar as their wage
provision is concerned. In the event however, that the principals fail
to pay the prescribed minimum wage, the construction/service
contractors shall be jointly and severally liable with the principals.
Sec.
7. WORKERS PAID BY RESULTS
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:
a.
Amount of increase in AMW */
Previous AMW x 100 = % increase;
b. Existing rate/piece x % increase =
increase in rate/piece;
c. Existing rate/piece + increase in
rate/piece = Adjusted rate/piece
*
Where AMW is the
Applicable Minimum Wage
rate
The wage rates for
workers who are paid
by results shall continue to be established in accordance with Article
101 of the Labor Code, as amended and its implementing regulations.
Sec.
8. WAGES OF SPECIAL GROUP OF WORKERS
Wages of apprentices
and learners shall
in no case be less than seventy five percent (75%) of the applicable
minimum wage rates prescribed in this Order. All recognized learnership
and apprenticeship agreements entered into before the effectivity of
the Order shall be considered automatically modified insofar as their
wage provisions are concerned to reflect the increase prescribed under
the Order.
Sec.
9. PRODUCTIVITY-BASED WAGES
In order to sustain
rising levels of
wages and enhance competitiveness, businesses are encouraged to adopt
productivity improvement schemes such as time and motion studies, good
housekeeping, quality circles, labor management cooperation, as well as
implement productivity gain-sharing programs. Accordingly, the Board
shall provide the necessary studies and technical assistance pursuant
to Republic Act No. 6971 or the Productivity Incentives Act of 1990.
Sec.
10. SUGGESTED FORMULAE IN DETERMINING THE EQUIVALENT MONTHLY REGIONAL
MINIMUM WAGE RATES
Without prejudice to
existing company
practices, agreements or policies, the following formulae may be used
as guides in determining the equivalent monthly minimum wage rates:
a.
For those
who are required to work everyday including Sundays or rest days,
special days and regular holidays:
EstimatedEquivalent
Monthly
Rate (EEMR) |
|
|
| =
Applicable Daily Wage
Rate (ADR) |
x 392.5 days/12 |
|
|
|
| Where
392.5 days are: |
299.0 |
|
days - ordinary
working
days |
|
|
22.0 |
|
days - regular
holidays |
|
|
67.6 |
|
days - 52 rest
days x 130% |
|
|
3.9 |
|
days - 3
special days x
130% |
|
|
|
|
|
|
|
392.5 |
|
days - Total
no. of days
/ year |
b.
For those
who do not work and are not considered paid on Sundays or rest days,the
factor is 313 days.cralaw:red
EEMR
= ADR x
313 days /
12 months
EstimatedEquivalent
Monthly
Rate (EEMR) |
|
|
| =
Applicable Daily Wage
Rate (ADR) |
x 392.5 days/12 |
|
|
|
| Where
313 days/year |
299 |
|
days - ordinary
working
days |
|
|
1 |
|
days - regular
holidays |
|
|
3 |
|
days - special
days |
|
|
|
|
|
|
|
313 |
|
days - Total
no. of days
/ year |
c.
For
those who do not work and are not considered paid on Saturdays and
Sundaysor rest days, the factor is 261 days.cralaw:red
EEMR =
ADR x 261
days / 12
months
| Where
261 days/year |
247 |
|
days -
ordinary working days |
|
|
11 |
|
days
- regular holidays |
|
|
3 |
|
days
- special days |
|
|
|
|
|
|
|
261 |
|
days
- Total no. of days /
year |
d.
The
breakdown of factor 365 days / year is as follows:
EEMR =
ADR x 365
days / 12
months
| Where
365 days are: |
299 |
|
days
- ordinary working days |
|
|
52 |
|
Sundays / rest
days |
|
|
11 |
|
regular holidays |
|
|
3.9 |
|
special days |
|
|
|
|
|
|
|
365 |
|
days - Total no.
of days / year |
Note: The
above-suggested formulae is by reason of the passage of R.A. 9492 (An
Act Rationalizing the
Celebration of National Holidays Amending for the
Purpose Sec. 26, Chapter 7,
Book I of Executive Order No. 292, as amended, otherwise known as the
Administrative Code of 1987).
Sec.
11. APPEAL TO THE COMMISSION
Any party
aggrieved by the Order issued
by the Board may file an appeal with the Commission through the Board
within ten (10) calendar days from the publication of the Order. The
Commission shall decide the appeal
within sixty (60) calendar days from the date of filing.
Sec.
12. EFFECT OF APPEAL
The filing of the appeal does not operate
to stay the Order unless the party appealing such Order shall file with
the Commission an undertaking with a surety or sureties satisfactory to
the Commission for payment of the corresponding increase to employees
affected by the Order in the event such Order is affirmed.
RULE III
EXEMPTIONS
Section
1. EXEMPTIBLE CATEGORIES
Upon application with
and as determined
by the Board and in accordance with the NWPC Guidelines No. 02, series
of 2007 (Amended Rules on Exemption), the following may be exempted
from applicability of the Order.cralaw:red
a.
Distressed
Establishments;
b. New Business Enterprises (NBEs);
c. Retail/Service establishments employing not more than 10 workers; and
d. Establishments adversely affected by natural calamities
Sec. 2.
FILING OF APPLICATION
FOR EXEMPTION
All
applications for exemption shall be
filed under oath and with complete supporting documents within seventy
five (75) days from the date of the publication of this Rules. No
extension of time for filing and submission of the required documents
shall be allowed.
In the case of
NBEs, applications shall
be filed not later than sixty (60) days from the date of registration.
Applications
filed before the DOLE regional or provincial satellite offices shall be
deemed filed before the proper RTWPB.
Sec.
3. CRITERIA FOR EXEMPTION
The following
criteria shall be used to
determine whether the applicant-establishment is qualified for
exemption:
A.
Distressed Establishment
1.
For Corporation/ Cooperatives
a.
Full Exemption:
a.1
When the deficit, as defined in Sec. 2 (y), Rule I as of the last
full accounting period preceding the effectivity of the Order amounts
to 20% or more of the paid-up capital for the same period; or
a.2 When an establishment registers capital
deficiency i.e., negative stockholder’s equity, as of the last full
accounting period immediately preceding the effectivity of the Order.chanrobles virtual law library
b. Partial Exemption
b.1
When the deficit, as defined in Sec. 2 (y), Rule I, as of the
last full accounting period immediately preceding the effectivity of
the Order amounts to at least 10% but less than 20% of the paid-up
capital for the same period.chanrobles virtual law library
c. Conditional Exemption
c.1
When the actual net loss as of the interim period immediately preceding
the effectivity of the Order amounts to at least 25% of total assets.chanrobles virtual law library
2. For Single
Proprietorships/ Partnerships
a.
Full Exemption:
a.1
When the accumulated net losses for the last two (2) full accounting
periods immediately preceding the effectivity of the Order amounts to
20% or more of the total invested capital at the beginning of the
period under review; or
a.2 When an
establishment registers capital deficiency i.e. negative net worth as
of the last full accounting period immediately preceding the
effectivity of the Order.chanrobles virtual law library
b. Partial Exemption:
b.1
When the accumulated net losses for the last two (2) full accounting
periods immediately preceding the effectivity of the Order amounts to
at least 10% but less than 20% of the total invested capital at the
beginning of the period under review.chanrobles virtual law library
c. Conditional Exemption:
c.1
When the actual net loss of the interim period immediately preceding
the effectivity of the Order amounts to at least 25% of the total
assets.chanrobles virtual law library
3. For Non-stock,
Non-profit Organizations
a.
Full Exemptions:
a.1
When the accumulated net losses for the last two (2) full accounting
periods immediately preceding the effectivity of the Order amounts to
20% or more of the fund balance/member’s contribution at the beginning
of the period; or
a.2 When an establishment registers capital
deficiency i.e. negative fund balance/member’s contribution as of the
last full accounting period or interim period, immediately preceding
the effectivity of the Order.chanrobles virtual law library
b. Partial Exemption:
b.1
When the accumulated net losses for the last two (2) full accounting
periods immediately preceding the effectivity of the Order amounts to
at least 10% but less than 20% of the fund Balance/member’s
contribution at the beginning of the period.chanrobles virtual law library
c. Conditional Exemption:
c.1
When the actual net loss of the interim period immediately preceding
the effectivity of the Order amounts to at least 25% of the total
assets.chanrobles virtual law library
4. For Banks and
Quasi-banks
a.
Under receivership/liquidation
Exemption may be granted to a
bank or quasi-bank under receivership or liquidation when there is a
certification from the Bangko Sentral ng Pilipinas that it is under
receivership or liquidation as provided in Sec. 30 of RA 7653,
otherwise known as the New Central Bank Act.chanrobles virtual law library
b. Under
controllership/conservatorship
A
bank or quasi-bank under controllership/ conservatorship may apply for
exemption as a distressed establishment under Sec. 3 A of this
Rules.chanrobles virtual law library
5. Establishment Under
Corporate Rehabilitation
Exemption
may be granted to corporations, partnership and associations under
corporate rehabilitation when there is an order from the court of
competent jurisdiction that it is under rehabilitation as provided in
Sec. 6 Rule IV of the Interim Rules of Procedure on Corporate
Rehabilitation (2000).chanrobles virtual law library
B. New Business
Enterprises
Exemption may be granted to New
Business Enterprises located outside the Export Processing Zones and
established within two (2) years from the effectivity of the Order,
classified under any of the following:
1.
Agricultural establishment whether plantation or non-plantation;
2. Establishment with total assets after financing of five million
pesos (P5,000,000.00) and below.chanrobles virtual law library
C. Retail/Service
Establishment Regularly Employing Not More than Ten (10) Workers
Exemption may be granted to a
retail/service establishment when:
1.
It is engaged in the retail sale of goods and/or services to end users
for personal or household use.chanrobles virtual law library
2. It is regularly
employing not more than ten (10) workers regardless of status, except
the owner’s, for at least six (6) months in any calendar year.chanrobles virtual law library
D. Establishments
Adversely Affected by Natural Calamities
1.
The establishment must be located in an area declared by a competent
authority under a state of calamity.chanrobles virtual law library
2. The natural
calamities, such as earthquakes lahar flow, typhoons, volcanic
eruptions, fire, floods and similar occurrences, must have occurred
within 6 months prior to the effectivity of the Order.chanrobles virtual law library
3. Losses suffered by the
establishment as a result of the calamity that exceed the insurance
coverage should amount to 20% of the stockholder’s equity as of the
last full accounting period in the case of corporations and
cooperatives, total invested capital in the case of partnerships and
single proprietorships and fund balance/member’s contribution in the
case of non-stock non-profit organizations.chanrobles virtual law library
Only losses or damage to
properties directly resulting from the calamity and not incurred as a
result of normal business operations shall be considered.chanrobles virtual law library
4. Where necessary, the
Board or its duly authorized representative shall conduct an ocular
inspection of the establishment or engage the services of experts to
validate the extent of damages suffered.chanrobles virtual law library
Sec.
4. DOCUMENTS REQUIRED
The following supporting documents shall
be submitted together with the application letter:
For
all Categories of Exemption
Proof
of notice of filing of the application to the President of the
union/contracting party if one is organized in the establishment, or if
there is no union, a copy of a circular giving general notice of the
filing of the application to all workers in the establishment. The
proof of notice, which may be translated in the vernacular, shall state
that the workers’ representative was furnished a copy of the
application with all the supporting documents. The notice shall be
posted in a conspicuous place in the establishment.
Further,
applicants are required to execute an affidavit under oath, as to the
nature of its business, list of employees with corresponding wage rates
and an undertaking that it has complied with the previous wage order.
Sec.
5. DURATION AND EXTENT OF EXEMPTION
A. For Distressed Establishments
1.
For corporations, cooperatives, single proprietorships, partnerships,
non-stock and non-profit organizations:
a.
Full or Partial Exemption
a.1
Audited Financial Statements (together with the Auditor’s opinion and
the note thereto) for the last two (2) full accounting periods
preceding the effectivity of the Order filed with and stamped
“received” by appropriate government agency.
b. Conditional
Exemption
b.1
Audited Financial Statements (together with the Auditor’s opinion and
the note thereto) for the last full accounting period and interim
quarterly financial statement’s for the period immediately preceding
the effectivity of the Order.
b.2 To confirm the
grant of conditional exemption, audited financial statements for the
last full accounting period, stamped received by the appropriate
government agency, to be submitted within 30 days from the lapse of the
one-year period.
2. For Banks and
Quasi-Banks
Certification from the Bangko Sentral ng Pilipinas that it is under
receivership/liquidation.
3. For Establishments
under Corporate Rehabilitation
Order from the court of competent jurisdiction that the establishment
is under rehabilitation.
B. For New Business
Enterprises (NBEs)
i.
Affidavit from employer regarding the following:
a.
Principal economic activity;
b. Date of registration with
appropriate government agency;
c. Amount of total assets.
ii. Certificate of
registration from the appropriate government agency.
C. For Retail/Service
Establishments employing not more than ten (10) Workers
i.
Affidavit from employer stating the following:
a. It
is a retail/service establishment;
b. It is regularly employing not more
than ten (10) workers for at least six months in any calendar year.
ii. Business Permit
for the current year from the appropriate government agency.
D. For Establishments
Adversely Affected by Natural Calamities
i.
Affidavit from the General Manager or Chief Executive Officer of the
establishment regarding the following:
a. Date
and type of calamity;
b. Amount of losses/damages suffered as
a direct result of the calamity;
c. List of properties damaged/lost
together with estimated valuation;
d. For properties that are not insured,
a statement that the same are not covered by the insurance.
ii. Copies of
insurance policy contracts covering the properties damaged, if any;
iii. Adjuster’s
report for insured properties;
iv. Audited financial
statements for the last full accounting period preceding the
effectivity of the Order stamped “received” by the appropriate
government agency.
The Board may
require the submission of other pertinent documents to support the
application for exemption.
A full exemption of one (1) year from the
date of effectivity of the Order shall be granted to all categories of
establishments that meet the applicable criteria for exemption under
NWPC Guidelines No. 02, series of 2007.
However, a partial exemption of 50% with
respect to the amount or period of exemption shall be granted only in
the case of distressed establishments.
A conditional exemption of one (1) year
from the effectivity of the Order shall be granted only in the case of
distressed establishment under the abovementioned Guidelines. The
conditional exemption shall be confirmed, as follows:
1. For Corporations
When deficit as defined in Sec. 2 (y) , as of the last full
accounting period amounts to 20% or more of the paid-up capital for the
same period;chanroblesvirtualawlibrary
2. For Single Proprietorships and partnerships
When net loss for the last two (2) full accounting periods immediately
preceding the effectivity of the Order amounts to 20% or more of the
total invested capital at the beginning of the period under review.
3. For Non-stock Non-Profit Organization
When net loss for the last two (2) full accounting periods immediately
preceding the effectivity of the Order amounts to 20% or more of the
fund balance/member’s contribution at the beginning of the period.
In the absence of such actual losses, the company shall pay its workers
the wage increase due them under the Order, retroactive to the
effectivity of the Order.
Sec.
6. ADOPTION OF PRODUCTIVITY IMPROVEMENT PROGRAMS
Establishments granted exemption are
required to adopt productivity improvement initiatives or schemes to
improve business viability. The Commission and the Boards shall provide
technical assistance in the development of a productivity improvement
program in the establishment
Sec.
7. EFFECT OF FILING OF APPLICATION FOR EXEMPTION
Whenever an application for exemption has
been filed with the Board, the Regional Office of the Department shall
be duly notified. Pending resolution of the said applications, action
on any complaint for alleged non-compliance with the Order shall be
deferred by the Regional Office of the Department.
Sec.
8. DISTRESSED PRINCIPAL
Exemption granted to a distressed
principal shall not extend to his contractor in case of contract(s) for
construction, security, janitorial and/or similar services with respect
to the employees of the latter assigned to the former.
Sec.
9. EFFECT OF DISAPPROVED APPLICATION FOR EXEMPTION
In the event that the application for
exemption is not approved, covered workers shall be paid the mandated
wage increase as provided for under the Order retroactive to the date
of effectivity of the Order plus simple interest of one (1%) percent
per month.
Sec.
10. MOTION FOR RECONSIDERATION
An aggrieved party may file with the
Board a motion for reconsideration of the decision on the application
for exemption within ten (10) days from receipt of the decision,
stating the particular grounds upon which the motion is based, copy
furnished the other party and the Regional Office of the Department.
No second motion for reconsideration
shall be entertained in any case. The decision of the Board shall be
final and executory unless appealed to the Commission.
RULE
IV
SPECIAL PROVISIONS
Section
1. EFFECTS ON EXISTING WAGE
STRUCTURE
-
Should any
dispute arise
as a result of wage distortion, the employer and the union shall
negotiate to correct the distortion through the grievance procedure
under their collective bargaining agreement, and if it remains
unresolved, through voluntary arbitration. Unless otherwise agreed by
the parties in writing, such dispute shall be decided by the voluntary
arbitrator or panel of arbitrators within ten (10) calendar days from
the time such dispute was referred to voluntary arbitration.
-
In cases where
there are
no collective bargaining agreements or recognized labor unions, the
employers and workers shall endeavor to correct the distortion. Any
dispute arising therefrom shall be settled through the National
Conciliation and Mediation Board (NCMB) and if it remains unresolved
within ten (10) calendar days of conciliation, the same shall be
referred to the appropriate branch of the National Labor Relations
Commission (NLRC). The NLRC shall conduct continuous hearings and
decide on the dispute within twenty (20) calendar days from the time
said dispute is submitted for compulsory arbitration.
-
The pendency
of a
dispute arising from a wage distortion shall not in any way delay the
applicability of the increase prescribed under the Order and such issue
shall not be ground for strike/lockout. Sec.
2. COMPLAINTS FOR NON-COMPLIANCE
Complaints
for non-compliance with the wage increase prescribed under the Order
shall be filed with the Regional Office of the Department having
jurisdiction over the workplace and shall be the subject of enforcement
proceedings under Articles 128 and 129 of the Labor Code as amended.
Sec.
3. CONDUCT OF INSPECTION BY THE DEPARTMENT
The
Department shall conduct inspections of establishments, as often as
necessary, to determine whether the workers are paid the prescribed
wage rates and other benefits granted by law or any Order. In the
conduct of inspection in unionized companies, Department inspectors
shall always be accompanied by the president or other responsible
officer of the recognized bargaining unit or of any interested union.
In the case of non-unionized establishments, a worker representing the
workers in the said company shall accompany the inspector.
The workers’ representative shall have
the right to submit his own findings to the Department and to testify
on the same if he does not concur with the findings of the labor
inspector.
Sec.
4. NON-DIMINUTION CLAUSE
Nothing in the Order and in these Rules
shall be construed to reduce any existing wage rates, allowances and
benefits of any form under existing laws, decrees, issuances, executive
orders, and or any contract or agreement between the workers and
employers.
Sec.
5. PROHIBITION AGAINST INJUNCTION
No preliminary or permanent injunction or
temporary restraining order may be issued by any court, tribunal or
other entity against any proceedings before the Commission or Board.
Sec.
6. PENAL PROVISIONS
-
Pursuant to
the
provisions of Sec. 12 of RA 6727 as amended by RA 8188, any
person,
corporation, trust, firm, partnership, association or entity which
refuses or fails to pay any of the prescribed increases in the Order
shall be punished by a fine not less than Twenty Five thousand Pesos
(P25,000.00) nor more than One Hundred Thousand Pesos (P100,000.00) or
imprisonment of not less than two (2) years nor more than four (4)
years or both such fine and imprisonment at the discretion of the
court. Provided that any person convicted under the Order shall not be
entitled to the benefits provided for under the Probation Law.
-
If the
violation is
committed by a corporation, trust or firm, partnership, association, or
any other entity, the penalty of imprisonment shall be imposed upon the
entity’s responsible officers, including but not limited to the
president, vice-president, chief executive officer, general manager,
managing director or partner.
Sec.
7. FREEDOM TO BARGAIN
The Order shall not be construed to
prevent workers in particular firms or enterprises of industries, from
bargaining for higher wages and flexible working arrangements with
their respective employers.
Sec.
8. REPORTING REQUIREMENTS
Any person, company, corporation,
partnership or any entity engaged in business shall submit a verified
itemized listing of their labor component to the Board not later than
31 January 2008 and every year thereafter in accordance with the form
prescribed by the Commission.
Sec.
9. SEPARABILITY CLAUSE
If any provisions or part of the Order
and this Rules or the application thereof to any person or
circumstance, is held invalid or unconstitutional, the remainder of the
Order and this Rules or the application of such provision or part
thereof to other persons or circumstances shall not be affected thereby.
Sec.
10. REPEALING CLAUSE
All orders, issuances, rules and
regulations or parts thereof inconsistent with this Order are hereby
repealed, amended or modified accordingly.
Sec.
11. EFFECTIVITY
This Rule
shall take effect on November
7, 2007.
APPROVED:
Butuan City, Philippines, this 25th day of October, 2007
.
|
(Sgd.)
JOSELITO V. SORIANO
Member, Labor
Representative |
(Sgd.) ROLANDO C.
DAHANG
Member, Labor
Representative |
(Sgd.)
JORGE G.
UY
Member, Employers’
Representative
|
Vacant
Member, Employers’ Representative
|
(Sgd.)
Dir.
CARMENCITA S. COCHINGCO
Vice Chairperson – NEDA
|
(Sgd.) Dir. BRIELGO
O. PAGARAN
Vice Chairperson – DTI
|
(Sgd.)
Dir.
CHONA M. MANTILLA
Chairperson - DOLE |
| |
|
Approved
this 19 day of November 2007, Manila, Philippines. |
| |
(Sgd.)
ARTURO D. BRION
Secretary
Department of Labor and
Employment | | 
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