HR FORMS, NOTICES AND CONTRACTS
POLICY DESIGN ALIGNED WITH LABOR LAWS
May 8, 2013 / 8:30AM - 5:30PM - Crowne Plaza Galleria, Ortigas Center Pasig City |
MODULE I – 8:30 a.m. – 12:30 p.m. |
Hiring and Recruitment
(Basis of Discussion: HR Forms, Notices & Contracts Volume I by Atty. Villanueva) |
I. Understanding and drafting various kinds of employment contracts (Basis of Discussion: HR Forms, Notices & Contracts Volume I by Atty. Villanueva) |
a. Concept of Contract in General
b. Basic Elements of a Contract in General
i. Consent
ii. Object
iii. Consideration |
c. Nature of employment contract
i. Imbued with public interest
ii. Public policy
iii. Is there employment contract without written agreement?
iv. Written vs. verbal contract 1. Absence of a written copy of the contract does not negate existence of contract of employment v. How the courts view employment contracts 1. Contracts shall be obligatory in whatever form they have been entered into, provided all essential requisites for validity are present |
d. Other circumstances which may prove presence of employment relationship
i. Issuance of ID
ii. Issuance of pay slip, cash vouchers, etc., as proof of salary
iii. Daily time record
iv. Reporting of employee to SSS, Philhealth, etc.
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e. Parts of an employment contract, in general:
i. Title
ii. Announcement
iii. Parties
iv. Consideration
v. Responsibilities/obligations
vi. Signature
vii. Acknowledgment
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f. Standard provisions of an employment contract
i. Purposes and intents (Whereas clauses)
ii. Commencement date
iii. Provisions on labor standards benefits
1. Inclusion/Exclusion rule
2. Exclusion from labor standards benefits of managerial employees and other officers and members of managerial staff
3. Concept of field personnel, workers paid by results, etc.
4. Hours of work
5. Overtime
6. Rest day
7. Holiday pay
8. Service incentive leave
a. Vacation leave
b. Sick/Emergency leave
9. Service charges
10. 13th month pay, etc.
11. Other leave benefits: Gynecological, VAWC, Parental, Maternity, Paternity, etc.
12. Benefits above the mandated provisions of law
iv. Company rules and regulations
1. Rule on incorporation of documents
v. Probationary clause
vi. Non-disclosure/Confidentiality
vii. Non-compete
1. Rules for validity
2. Duration
3. Time
4. Industry
viii. Intellectual property ownership (Copyright, invention, etc.)
ix. Termination clause
1. Failure to qualify
2. Just Cause (Article 282)
3. Authorized Cause (Article 283 and Article 284)
4. Other causes under the Labor Code (Art. 263 [g]; Art. 264 [a])
x. Resignation
1. 30-day prior notice rule
2. Involuntary servitude; Oppression of employer
3. Liquidated damages
xi. Retirement clause (Art. 287, Labor Code)
1. Optional
2. Compulsory
3. Retirement Fund
xii. Clause on withholding of final pay
xiii. Authority to deduct from final pay
xiv. Clause on satisfaction of clearance and other exit documents |
g. Types of employment contract:
i. Probationary
1. Concept of probationary employment
2. Six-month probationary rule
3. How to extend probationary beyond six months
4. Reasonable standards
5. Apprising newly hired with reasonable standards
a. When to notify employee of the standards for regularization
6. Concept of “failure to qualify”
7. Important provisions in drafting probationary employment contract
ii. Regularization contract
1. Article 280 of the Labor Code in relation to Article 279 on Security of Tenure
2. Concept of “regular from day one”
3. Performance of directly-related duties
iii. Project employment
1. What is project employment?
2. Exception from regularization
3. Requisites of a valid project employment contract
4. Indicators of valid project employment
iv. Seasonal employment contract
1. Nature of seasonal employment
2. Regular seasonal employee
v. Fixed-Term Employment
vi. Casual Employment
vii. Part-time employment
viii. Concept of acting capacity
ix. Special program for employment of students (SPES)
x. Apprenticeship
xi. Learnership
II. Employment checklist
a. Importance of checklist
b. Compliance with items in checklist as condition precedent to employment
c. Non-compliance with checklist in relation to insubordination
III. Training Bond
a. Holding period after training
b. Charging of training expenses
c. Reimbursement of cost for failure to observe holding period
IV. Documentation in recruitment and hiring and value as evidence in court
V. Rules in case of dispute over contracts
a. Grievance procedure with/without a union
b. Voluntary arbitration
c. Single Entry Approach
d. Mandatory conciliation mediation under RA 10396 (March 14, 2013) inserting Article 228 in the Labor Code
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MODULE II – 1:30 p.m. – 5:30 p.m. |
Company Policy and Employee Discipline
(Basis of Discussion: HR Forms, Notices & Contracts Volume II by Atty. Villanueva) |
I. Disciplinary Forms and Notices
Review of basic principles and rules:
a. Discipline as a management prerogative
b. Security of Tenure for employees
c. Two aspects of due process
i. Substantive
ii. Procedural
d. Just cause for dismissal and other provisions allowing termination for lawful cause
i. Article 282 of the Labor Code
ii. Article 263 (g)
iii. Article 264 (a)
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e. Grounds for dismissal under Article 282
i.Serious misconduct
ii. Insubordination
iii. Gross and habitual neglect of duty
iv. Fraud or willful breach of trust
v. Other analogous causes
f. Procedural due process
i. Twin requirements:
1. Notice
2. Hearing
ii. Two-Notice rule:
1. Notice to Explain (NTE) or Show-cause memo (SCM)
a. Article 277 of the Labor Code
b. King of Kings Transport Inc. vs. Mamac
2. Final Notice of Dismissal
iii. Hearing/conference
1. Notice of conference
2. Minutes of conference
3. Rules during hearing/conference
II. Drafting the NTE |
a. Statement of charge/s
b. Narration of facts
c. What to avoid
i. Prejudgment
ii. Conclusion of facts
iii. Conclusion of law
d. Period to submit reply
e. Statement of consequence for failure to submit reply
i. Failure to submit explanation is insubordination
ii. Insubordination as a separate offense to the instant charge
f. NTE coupled with preventive suspension
i. Concept of preventive suspension
ii. 30-day max rule
iii. Rules on extension (inclusion in payroll; notice, etc.)
iv. Constructive dismissal
g. Drafting preventive suspension notice
h. Drafting extension of preventive suspension
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III. Drafting notice of conference
a. Time, date, venue
b. Desired counsel or support person
c. Statement of consequence for failure to attend hearing IV. Drafting final notice of dismissal
a. Statement of facts
b. Establishing receipt of notices and holding of hearing/conference
c. Applicable rule/s, law/s
d. Application of law to the facts
e. Final notice of dismissal
f. Clause stating “without prejudice to filing of civil or criminal case”
g. Enforcing withholding clause prior to satisfaction of exit documents
h. Enforcing deduction from final pa |
V. Specific rules in drafting notices for AWOL
a. Order to report for work immediately
b. Statement of consequence: “deemed to have abandoned employment” |
VI. Suspension as a penalty
a. Procedural due process the same as dismissal
b. Suspension as a penalty vs. preventive suspension
c. Imposing preventive suspension and suspension as a penalty in the same offense
d. Drafting notice of suspension as a penalty |
VII. Drafting acceptance of resignation
a. Rule as to resignation under Article 285
b. Acceptance: marginal notes and verbal acceptance vs. acceptance in writing |
VIII. Drafting notices not involving the penalty of dismissal
IX. Drafting company rules and regulations
a. Stating company vision, mission, history
b. Management declarations
c. Definition of peculiar terms
d. Procedure in enforcing discipline
e. Rules on penalty |
X. Drafting employee handbook
a. Policies are binding on the company
i. Travel
ii. Promotion
iii. Transfer
iv. Demotion
b. Nepotism
c. Other items for the handbook |
XI. CBA provisions
a. Salient items in the CBA
XII. Tips in drafting any form of documents |
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| Atty. Elvin B. Villanueva
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• A seasoned HR Professional and Labor Practitioner appearing before the NLRC
• Heads the HR Department of one of the top 1000 corporations in the Philippines
• Graduated Cum Laude from Pamantasan ng Lungsod ng Maynila with a degree in Mass Communication
• Finished Bachelor of Laws with Honors from the Arellano University
• Author of several books including Guide to
Valid Dismissals of Employees; Guide on Employee Compensation and
Benefits Volume I and II; Wage Order and Minimum Wage; Human Resource
Forms, Notices and Contracts Volume I and II; Transfer and Demotion;
etc.
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AND other company officials who need to have an understanding of basic employment laws and regulations |
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HR FORMS, NOTICES AND CONTRACTS
POLICY DESIGN ALIGNED WITH LABOR LAWS
May 8, 2013 / 8:30AM - 5:30PM - Crowne Plaza Galleria, Ortigas Center Pasig City |
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