Hiding Behind a Managerial Designation to Circumvent the Law

The mere designation of a rank-and-file employee of a title as an officer does not ipso facto means that an employee is under a managerial position. The Labor Code of the Philippines specifically provides that “managerial employees refer to 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 (LC, Book III, Art.82). In this case, if the employee does not posses any supervisory or managerial function, he cannot be considered as a managerial employee even if he has been designated as an officer.

It is a clear and plain violation of the law to deprive the rank-and-file employee of the benefits like Premium Pay, Overtime Pay, and Holiday Pay appropriate and proper to his position by maliciously designating him as an officer or a managerial employee. The focal point to consider, in determining whether or not the employee is a managerial employee or not, is the actual work performed by the employee.

Premium Pay, Overtime Pay, and Holiday Pay must be given to all employees except to the specified persons duly provided for by law (LC, Arts 87,94). A managerial employee is included in the exception that is the reason why employers would want their employees, although not performing a managerial function nor an officer of the managerial staff, to be designated as a managerial employee. This is, however, a blatant disregard and ridicule of the law and ought not to be tolerated.

In order to be considered as a Managerial employee, the following conditions must be considered:

Their primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof.
They customarily and regularly direct the work of two or more employees therein.
They have authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to promotion or any other change of status of employees are given particular weight.

Likewise, to be considered as officers or members of a managerial staff, the following duties and responsibilities must be present:

The primary duty consists of the performance of work directly related to management policies of their employer;
Customarily and regularly exercise discretion and independent judgment; and
Regularly and directly assist a proprietor or managerial employee whose primary duty consist of the management of the establishment in which he is employed or subdivision thereof;
Who do not devote more than 20% of their hours worked in a work week to activities which are not directly and closely related to the performance of the work described in paragraphs 1, 2, and 3 above. (Handbook on Workers Statutory Monetary Benefits)

In the absence of the following conditions and requirements, the employee cannot and should not be considered as a managerial employee in determining whether or not the employee is entitled to the above mentioned benefits. It is a patent infringement of the Labor Code and contrary to law.

I would therefore recommend that the employee immediately assert his right to full protection to labor (Labor Code, Art. 3) in order to impede the continuous disregard of his rights. The concern must be primarily brought to the company’s attention before going to the National Labor Relations Commission (NLRC) for arbitration to avoid early dismissal for failure to exhaust administrative remedy.

A formal letter should be addressed to the company for the immediate correction of the company policy and for the reimbursement thereof of payment not properly compensated.


Claudio Gripal Requiño II
For further queries please email
claude_requino@ispx.com.ph

RE: THE PARLIAMENTARY AND OUR PRESENT STATE OF GOVERNEMNT

This is only my opinion on the topic at hand. Take care and enjoy! God Bless

Although our government, in a way or another, is a limited form of parliamentary government, it is but essential to determine the difference between them in order to know what form of government would best suit our country.

Parliamentary government originated in England, hence it would be of best results, if we would concentrate the discussion on England’s concept of parliament. This is believed to be the reign of the congress because, such body, has the eminent power over the nation both in legislative and judiciary.

Parliamentary government has two houses: the House of Lords, for one, and the House of Common. Corollary our government has the Senate (Upper House) and the House of Representatives (Lower House). Although both our present congress and the parliament has two houses acting in a legislative or law making function, the House of Lord of the parliament is stripped off of the power to veto the bill passed by the House of Common. To this effect, the House of Lords is more of an ornamentation to the Parliament and its existence is of no weigh. The House of Common makes all the deliberations and discussion in law making. In other words, the House of Common does not need the assent of the House of Lords in creating a Law.

On the other hand, the Senate and the House of Representatives has an equal function in law making process. Both houses should convene, as a unicameral body, before passing a bill into law. More so, the manner of voting is divided in accordance to proportional representation, hence, though the house of representative is physically numerous than the senate, their representation is of equal standing. Both houses can veto the bill passed by each house. Therefore, the process of deliberation is comparatively more time consuming than that of a parliament.

The parliamentary government is headed by the Prime Minister. Such office exercises the administrative function of the state. It heads the executive and supervisory division of the government. It includes policy making, implementation of laws, and supervision and control of all administrative agencies. Equivalent to Prime Minister, in a certain extent, is our President. The President Heads the executive body of the state and has control and supervision over all administrative agencies. Likewise, the president implements laws and heads policy making of the state. However, the distinction lies in the process of achieving the position. A president is elected through nationwide election, after gaining the majority vote of all registered voters. On the other hand, a Prime Minister is appointed by the ruling party of the parliament. He is, ipso facto, a member of the house of common. In this case, the Prime minister voices out the representation of the ruling parliament and therefore, may be substituted upon the change of the ruling majority in the parliament.

It is of my opinion that the present state of government is better than a parliamentary form of government. Not that I would like to maintain the status quo, but as our present political system substantiate, a parliamentary form of government would be prone to abuse and exploitation would be in greater effect.

A parliamentary form of government, in my own perception, is a politically motivated and utilized form of government. The ruling political party controls the government and its subdivisions. The Prime Minister, being appointed by the parliament, would be, most of the time, if not always, in favor to the ruling majority, who by virtue of appointment, owes the office. The prime minister is at the mercy of the ruling majority. To this effect, he would be constrained from opposing the ruling majority even to the detriment of the state. It is basic knowledge that a ruling class would not want to step down for the minority. The ruling class would do anything to keep power and to maintain his superiority over the other.

As for the law making function of a parliamentary government, albeit it is true that a parliamentary passes and creates law in a faster manner, than our present congress, due to the exclusive power of the house of common, I still hold that the balance of representation is best upholded by two houses of congress. The deliberation of a bill by both congress will lessen the malevolent or malicious, if there be any, intention of the bill. In a parliament deliberation, the ruling majority holds the decisive power in creating a law, however in our present congress, the minority is well represented and the two houses serve as a check and balance for each house before a bill is passed into law. In effect, the law passed by the two houses of congress, after strict deliberations, reflects more the voice of the people.

claude requino

Mortgage Made to Appear an Absolute Sale to Illegally Acquire Properties

This is only my opinion on the topic at hand. Take care and enjoy! God Bless

Since at this time I am working closely with mortgage and loans at the office, I found it interesting to discuss the common problem with mortgage as contradistinguished from absolute sale.

Many evil minded individuals take advantage on the misfortunes of others. There are cases wherein, because of desperate need of money, especially on emergency, people are induced to execute an absolute sale with right to repurchase of their property (i.e. house) for a very low value. For instance, a house that is worth PhP 720,000.00 would be sold at a low price of PhP 120,000.00. This occurs because the seller has no other choice, but to sign such agreement, in order to have the money he terribly needs. Eventually since he is in financial difficulties, he cannot repurchase the said property and the greedy buyer would then acquire the property, to the seller's disadvantage.

Now, I have arrived to the query as to whether or not the law provided safeguards to this kind of malicious sale?

The law has given freedom to the seller and buyer to decide on the consensual price of the property to be sold. The seller will give his offer to the buyer, and upon meeting of the minds, they will execute the sale. The law must respect the agreement of the parties, as to the price and terms of the contract.

Notwithstanding this well founded doctrine, the law has provided an exception where, “the contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy (ART. 1306). I believe that the price, being iniquitous or unconscionable, is against public morals.

The law, likewise, legally considers this kind of sale as equitable mortgage and not as absolute sale. An absolute sale gives an effect of totally transferring the right of ownership from one person to another, in exchange of value. On the other hand, an equitable mortgage is a contract of loan, wherein the property is subjected only as a security for a debt.

In the case at bar, it could be presumed that the agreement of parties has the intention of mortgage rather that absolute sale. The law can not cater such malicious advantage and unjust gain. The law provides that “the contract shall be presumed to be an equitable mortgage… when the price of the sale with the right to repurchase is unusually inadequate (ART. 1602, 1).” The inadequacy of the price must be so gross and unconscionable that a reasonable man would neither directly nor indirectly be likely consent to it (Aguilar vs. Rubiato, 40 Phil. 570). Since PhP 120,000.00 is grossly inadequate as compared to PhP 720,000.00 actual price, the sale is presumed to be a loan with the property as its security.

IS PUTANG INA MO AN ACT OF SLANDER?

Putang ina mo! We often hear these offensive and unpleasant words in arguments and quarrels. Today, I am confronted by the issue as to whether or not “putang ina mo!” constitutes an act of slander.

Slander is the oral imputation of a crime, or a vice or defect, real or imaginary that tends to cause dishonor, discredit, or contempt of a person. This is otherwise known as oral defamation (RPC 358). In order to prove slander, there must be an oral defamatory imputation, malice, and an identified or identifiable victim.

Oral defamatory imputation is committed when things are said to a person that will bring shame or humiliate him. It is necessary that there is a malicious intent on the part of the accused. Expressing one’s opinion is actionable, if and when, the intention is to discredit.

Putang ina mo, as a rule, is merely an expression of disgust or displeasure and does not in itself constitute an oral defamation (Reyes v. People, GR L21528-29). The word “putang ina mo” when said in an argument does not connote an imputation of prostitution but merely a turn of phrase to show dislike to the person. Nevertheless, other antecedents like circumstances, time, place and relationship are to be considered. Even if the word putang ina mo is not definitely defamatory, the surrounding circumstances should be taken into account to make the person liable. The act, for instance, of searching the victim in the presence of her other employees were considered as indirect imputations of theft which she said she suspected the victim to have committed (People v De Guzman, GR L19075).

Therefore, putang ina mo, per se, does not consist slander but other surrounding circumstances may prove the crime.

Can Election Day be changed?

Few months more to go before the election; sooner controversies will pop-up from side to side attesting issues of public concern. It is thus very essential to discuss pertinent legal matters about the election. First and foremost, it must be clear that the Election Day is always on the second Monday of May, in this case, May 10, 2004, every three years from the 1992 election (RA 7166). Nevertheless, the congress may change the date of election in special cases, as when there is a failure of election, but it should be as close as possible to the date of election. Again, the congress, not the COMELEC (without proper delegation of legislative power), through a legislative act may alter the date of the election. In this case, if the COMELEC would pass a resolution changing the day of election, it would be null and void.

Corollary to this, COMELEC has the sole authority to extend the election period. The Constitution clearly specified that “unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of election and shall end thirty days thereafter (1987 Constitution, Art. IX, C, sec. 9).” The Congress, in this point, although entrusted with a plenary power to enact laws, has no authority to alter the election period.


A RIGHT TO VOTE OR A PRIVILEGE TO VOTE?

There is a thin demarcation line between these two concepts that is very essential to note. Against popular opinion, there is no right to vote but only a privilege to vote. A “right” is a claim or a title to, or interest in, anything whatsoever that is enforceable by law. It is clear therefore that a right is that which nothing can constrain or control, and is natural to the person. The Constitution enumerates in Article III, Bill of Rights, all the natural rights endowed upon the person. It includes the right to life, liberty, and property and obviously suffrage, or vote, is not included in the enumeration. Suffrage rather is covered by another article in the Constitution.

Suffrage is a privilege given to individuals, who have reached the age of eighteen and duly registered to the List of Voters by the Commission on Election, and who have resided in the Philippines for at least one year and, in the place wherein they propose to vote, for at least six months immediately preceding the election. Definitely, with the qualifications given, suffrage is acquired if and when you have the qualifications and non of the disqualifications. Furthermore, being a privilege, it may be enlarged, restricted, granted, or withheld by the state. This is the reason why some convicted criminals are restricted to vote and cannot exercise such privilege. In addition, no person can be imprisoned for not exercising the privilege to vote.