The duty to bargain collectively arises only between the “employer” and its “employees.” Where neither party is an “employer” nor an “employee” of the other, no such duty exists. Where there is no duty to bargain collectively, the duty to bargain violates no right.
The Omnibus Rules Implementing the Labor Code of the Philippines, as amended by Department Order 04-03 ([Omnibus Rules], 1989) specifically provides the laws governing collective bargaining. The following terms have been defined by the Rules as follows:
1) A "Collective Bargaining Agreement" or "CBA" refers to the contract between a legitimate labor union and the employer concerning wages, hours of work, and all other terms and conditions of employment in a bargaining unit.
2) "Legitimate Labor Organization” refers to any labor organization in the private sector registered or reported with the Department of Labor and Employment in accordance with Rules III and IV Implementing the Labor Code of the Philippines.
"Union" refers to any labor organization in the private sector organized for collective bargaining and for other legitimate purposes.
In other words, a legitimate labor union is a labor organization in the private sector, duly registered with the Department of Labor and Employment, and is organized for collective bargaining and for other legitimate purposes.
3) "Exclusive Bargaining Representative" refers to a legitimate labor union duly recognized or certified as the sole and exclusive bargaining representative or agent of all the employees in a bargaining unit.
4) "Bargaining Unit" refers to a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit.
The collective bargaining that the law envisions occurs between the employer and the employees comprised in an “appropriate collective bargaining unit.” It is that group of jobs that serves as the election constituency in the employer enterprise. In a hotel, for instance, all the rank-and-file employees may constitute one bargaining unit, and another unit for all supervisory employees [not classified as managerial employees]. Geographically, all the rank and file employees in Cebu may be one unit, and those in Metro Manila compose another unit.
5) "Certification Election" or "Consent Election" refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. A certification election is ordered by the Department, while a consent election is voluntarily agreed upon by the parties, with or without the intervention by the Department. This is in accordance with Article 255 of the Labor Code of the Philippines (1974) which states, “The labor organization designated or selected by the majority of the employees in an appropriate bargaining unit shall be the exclusive representative of the employees in such unit for purposes of collective bargaining.”
The Bureau of Labor Relations is the official repository of all the collective bargaining agreements which are required to be filed in accordance with the Omnibus Rules Implementing the Labor Code of the Philippines.
Azucena (2000) explains that CBA negotiated by the employees’ bargaining agent should be ratified or approved by the majority of all the workers in the bargaining unit. The ratification and the way to do it are mandatory as provided in the Omnibus Rules. Further, the collective bargaining agreement, after ratification should be registered with the Bureau of Labor Relations or the Department of Labor and Employment Regional Office that has jurisdiction over the establishment. Registration is required to be done within thirty (30) calendar days from execution of the agreement. Economic provisions in the CBA shall be renegotiated not later than three (3) years after its execution.
Nevertheless, the Department of Labor and Employment (Omnibus Rules, 1989, s. 1 Rule XXI) also promotes the formation of labor-management councils in organized and unorganized establishments to enable the workers to participate in policy and decision-making processes in the establishment, insofar as said processes will directly affect their rights, benefits and welfare, except those which are covered by collective bargaining agreements or are traditional areas of bargaining.
Sunday, October 2, 2011
Applicable Laws on Retirement in the Philippines
Republic Act No. 7641, amending Article 287 of the Labor Code of the Philippines (Retirement Pay Law 1992), specifically provides for the mandated payment of retirement benefits.
As further explained by the Department of Labor and Employment (1996), the minimum retirement pay formula that must be afforded to any qualified retiring employee shall be “one-half month salary shall mean fifteen (15) days plus one twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days service incentive leave” unless the parties provide for broader inclusions. Evidently, the law expanded the concept of “one-half month salary” from the usual one-month salary divided by two. In reckoning the length of service, the period of employment with the same employer before the effectivity date of the law on January 7, 1993 should be included. Coverage includes all employees in the private sector, regardless of their position, designation or status and irrespective of the method by which their wages are paid. However, the law does not cover employees of retail, service and agricultural establishments or operations regularly employing of not more than ten (10) employees.
In the absence of a retirement plan or other applicable agreement providing for retirement benefits of employees in an establishment, an employee may retire upon reaching the age of 60 years or more provided that he has served for at least five (5) years in said establishment. The compulsory retirement age of an employee under the Mandatory Retirement is sixty five (65) years. The minimum length of service in an establishment is five (5) years and shall include authorized absences and vacations, regular holidays and mandatory fulfillment of a military or civic duty.
In case of retirement under a collective bargaining agreement or other applicable employment contract or retirement plan, the employee shall be entitled to such benefits as he may have earned under such agreements or contracts; provided that in case the benefits are less than that provided by law, the employer shall pay the difference between the amount due the employee and that provided under the collective or individual agreement or retirement plan.
Where both the employer and the employee contribute to a retirement fund in accordance with an individual or collective bargaining agreement or other applicable employment contract, the employer’s total contribution thereto shall not be less than the total retirement benefits to which the employee would have been entitled had there been no such retirement fund. In case the employer’s contribution is less than the retirement benefits provided under the law, the employer shall pay the deficiency.
A retirement pay shall not constitute compensation subject to withholding tax if the retirement benefits received by employees of private firms under a reasonable private benefit plan comply with the following requirements:
(i) The benefit plan must be approved by the Bureau of Internal Revenue;
(ii) The retiring employee must have been in the service of the same employer for at least ten (10) years and is not less than fifty (50) years of age at the time of retirement; and
(iii) The retiring employee shall not have previously availed of the privilege (of withholding tax exemption) under the retirement benefit plan of the same or another employer.
Republic Act No. 4917 (An Act Providing That Retirement Benefits Of Employees Of Private Firms Shall Not Be Subject To Attachment, Levy, Execution, Or Any Tax Whatsoever, 1967) extends twin preferential treatments to retirement benefits accruing from a reasonable retirement plan, namely: (1) exemption from imposition of all taxes; and (2) not subject to attachment, garnishment, levy or seizure by or under any legal or equitable process whatsoever. In order to enjoy said treatments, at the time of his retirement, the retiring employee shall have been employed by the same employer for at least ten (10) years and is not less than fifty (50) years of age. In implementing the said law, Felizmenio Jr. (2008, p. 2) reported that the Bureau of Internal Revenue prescribes the following requisites to tag a retirement benefit plan as reasonable:
a) There must be a definite written program setting forth all provisions essential for qualifications;
b) It must be permanent and continuing program unless sooner terminated by virtue of a valid business reason;
c) It must cover at least 70% of all officials and employees;
d) The employer, officials and employees, or both, shall contribute to a trust fund for the purpose of distributing the corpus and income of the fund in accordance with the plan;
e) The corpus or income of the trust fund must not be diverted and shall be used exclusively for the benefit of the said officials or employees;
f) The contributions or benefits in the plan shall be non-discriminatory to favor officials or employees who are officers, shareholders, supervisors, or highly compensated;
g) It must provide for non-forfeitable rights to benefits accrued and to the amounts credited to an account of an official and employee at the time of discontinuance or termination of plan.
h) Any forfeited amounts must not be applied to increase the benefits any employee would otherwise receive under the plan but must be used as soon as possible to reduce the employer’s contributions under the plan.
Under BIR Revenue Regulation No. 1-83 (1982 s. 1), private companies must submit to the Bureau of Internal Revenue a copy of the written retirement plan program plus a statement of actuarial assumption or valuation duly certified by an independent consulting actuary who must be a Fellow of the Actuarial Society of the Philippines, before availing of the tax privileges afforded to pension plans.
Further, the Bureau of Internal Revenue (BIR) required that the retirement fund shall be administered by a trust. There are no specific limitations with respect to investments of the fund provided they are permitted by the trust agreement. In fact, the Section 60B of the Tax Reform Act (1997) specifically states that income derived from employee’s trust which forms part of a pension plan is exempted from income tax. However, the Bureau of Internal Revenue (BIR Regulations No. 01-68 1968, s. 5) mandated that the exemption of the trust income may be denied if the trust:
(a) Lends any part of its income or corpus without adequate security and a reasonable rate of interest;
(b) Pays any compensation in excess of a reasonable allowance for salaries or other compensation for personal services actually rendered;
(c) Makes any part of its services available on a preferential basis;
(d) Makes any substantial purchase of securities or any other property for more than adequate consideration in money or money’s worth;
(e) Sells any substantial part of its securities or other property, for less than an adequate consideration in money or money’s worth; and
(f) Engages in any other transaction which results in a substantial diversion of its income or corpus.
A legal opinion has been rendered by Bunag (2004) that if the retirement benefit to be received by a member of a private benefit plan established by the employer under R.A. No. 4917 and duly approved by the BIR is equal to or less than the minimum retirement benefit provided by R.A. No. 7641 on compulsory retirement, said benefits shall be exempt from income tax. However, if the employee receives from the BIR approved plan a retirement benefit in excess of the minimum retirement benefit provided by R.A. No. 7641 on compulsory retirement, he must satisfy the requirements or conditions of R.A. No. 4917, which means that he must be at least fifty (50) years old and must have served the company for at least ten (10) years in order that his retirement benefits may be tax exempt. Finally, retirement benefits received by employees not from a BIR approved retirement plan shall be governed by R.A. No. 7641. The opinion stemmed up from a case where several employees of GCHS since January 1, 1998 have been compulsorily retired after twenty (20) years of service, pursuant to Section 1, Article X of the GCHS Retirement Plan. These retirees, however, have not reached aged fifty (50). By reason of the opinion rendered, the benefits received by the retirees who were compulsory retired are tax exempt.
The above opinion should be reconciled with the ruling of the Bureau of Internal Revenue (BIR Ruling No. 052-2000 [2000]) which states:
“However, the Retirement Plan Rules and Regulations of a Company may provide that the normal retirement date or early/optional retirement date be more than what is required by the Tax Code. Consequently, in case of conflict between the Tax Code and the Retirement Plan Rules and Regulations, it is the latter that should prevail.”
“Such being the case, while Sec. 3 of the Retirement Plan Rules and Regulations provides that upon the attainment of at least age 55 or upon completion of twenty five (25) years of service the employee may be retired at the option of the company, the employee availing of the early/optional retirement must have rendered ten (10) years of service to the company or must be at least age fifty (50) years of age at the time of retirement, otherwise the retirement benefits to be paid to him shall be subject to income tax and consequently to withholding tax. In this particular case, although he is 51 years of age and has rendered 23 years of continuous service to the company, the retired employee is still not covered under the early/optional retirement for failure to comply with the conditions as provided in Sec. 3 of the said Plan i.e., attainment of at least age 55 or completion of twenty five (25) years of service. In fine, the retirement benefits to be paid to the said employee shall be subject to income tax and withholding tax prescribed under Section 57 (B) of the Tax Code of 1997, as implemented by Revenue Regulations No. 2-98.”
As further explained by the Department of Labor and Employment (1996), the minimum retirement pay formula that must be afforded to any qualified retiring employee shall be “one-half month salary shall mean fifteen (15) days plus one twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days service incentive leave” unless the parties provide for broader inclusions. Evidently, the law expanded the concept of “one-half month salary” from the usual one-month salary divided by two. In reckoning the length of service, the period of employment with the same employer before the effectivity date of the law on January 7, 1993 should be included. Coverage includes all employees in the private sector, regardless of their position, designation or status and irrespective of the method by which their wages are paid. However, the law does not cover employees of retail, service and agricultural establishments or operations regularly employing of not more than ten (10) employees.
In the absence of a retirement plan or other applicable agreement providing for retirement benefits of employees in an establishment, an employee may retire upon reaching the age of 60 years or more provided that he has served for at least five (5) years in said establishment. The compulsory retirement age of an employee under the Mandatory Retirement is sixty five (65) years. The minimum length of service in an establishment is five (5) years and shall include authorized absences and vacations, regular holidays and mandatory fulfillment of a military or civic duty.
In case of retirement under a collective bargaining agreement or other applicable employment contract or retirement plan, the employee shall be entitled to such benefits as he may have earned under such agreements or contracts; provided that in case the benefits are less than that provided by law, the employer shall pay the difference between the amount due the employee and that provided under the collective or individual agreement or retirement plan.
Where both the employer and the employee contribute to a retirement fund in accordance with an individual or collective bargaining agreement or other applicable employment contract, the employer’s total contribution thereto shall not be less than the total retirement benefits to which the employee would have been entitled had there been no such retirement fund. In case the employer’s contribution is less than the retirement benefits provided under the law, the employer shall pay the deficiency.
A retirement pay shall not constitute compensation subject to withholding tax if the retirement benefits received by employees of private firms under a reasonable private benefit plan comply with the following requirements:
(i) The benefit plan must be approved by the Bureau of Internal Revenue;
(ii) The retiring employee must have been in the service of the same employer for at least ten (10) years and is not less than fifty (50) years of age at the time of retirement; and
(iii) The retiring employee shall not have previously availed of the privilege (of withholding tax exemption) under the retirement benefit plan of the same or another employer.
Republic Act No. 4917 (An Act Providing That Retirement Benefits Of Employees Of Private Firms Shall Not Be Subject To Attachment, Levy, Execution, Or Any Tax Whatsoever, 1967) extends twin preferential treatments to retirement benefits accruing from a reasonable retirement plan, namely: (1) exemption from imposition of all taxes; and (2) not subject to attachment, garnishment, levy or seizure by or under any legal or equitable process whatsoever. In order to enjoy said treatments, at the time of his retirement, the retiring employee shall have been employed by the same employer for at least ten (10) years and is not less than fifty (50) years of age. In implementing the said law, Felizmenio Jr. (2008, p. 2) reported that the Bureau of Internal Revenue prescribes the following requisites to tag a retirement benefit plan as reasonable:
a) There must be a definite written program setting forth all provisions essential for qualifications;
b) It must be permanent and continuing program unless sooner terminated by virtue of a valid business reason;
c) It must cover at least 70% of all officials and employees;
d) The employer, officials and employees, or both, shall contribute to a trust fund for the purpose of distributing the corpus and income of the fund in accordance with the plan;
e) The corpus or income of the trust fund must not be diverted and shall be used exclusively for the benefit of the said officials or employees;
f) The contributions or benefits in the plan shall be non-discriminatory to favor officials or employees who are officers, shareholders, supervisors, or highly compensated;
g) It must provide for non-forfeitable rights to benefits accrued and to the amounts credited to an account of an official and employee at the time of discontinuance or termination of plan.
h) Any forfeited amounts must not be applied to increase the benefits any employee would otherwise receive under the plan but must be used as soon as possible to reduce the employer’s contributions under the plan.
Under BIR Revenue Regulation No. 1-83 (1982 s. 1), private companies must submit to the Bureau of Internal Revenue a copy of the written retirement plan program plus a statement of actuarial assumption or valuation duly certified by an independent consulting actuary who must be a Fellow of the Actuarial Society of the Philippines, before availing of the tax privileges afforded to pension plans.
Further, the Bureau of Internal Revenue (BIR) required that the retirement fund shall be administered by a trust. There are no specific limitations with respect to investments of the fund provided they are permitted by the trust agreement. In fact, the Section 60B of the Tax Reform Act (1997) specifically states that income derived from employee’s trust which forms part of a pension plan is exempted from income tax. However, the Bureau of Internal Revenue (BIR Regulations No. 01-68 1968, s. 5) mandated that the exemption of the trust income may be denied if the trust:
(a) Lends any part of its income or corpus without adequate security and a reasonable rate of interest;
(b) Pays any compensation in excess of a reasonable allowance for salaries or other compensation for personal services actually rendered;
(c) Makes any part of its services available on a preferential basis;
(d) Makes any substantial purchase of securities or any other property for more than adequate consideration in money or money’s worth;
(e) Sells any substantial part of its securities or other property, for less than an adequate consideration in money or money’s worth; and
(f) Engages in any other transaction which results in a substantial diversion of its income or corpus.
A legal opinion has been rendered by Bunag (2004) that if the retirement benefit to be received by a member of a private benefit plan established by the employer under R.A. No. 4917 and duly approved by the BIR is equal to or less than the minimum retirement benefit provided by R.A. No. 7641 on compulsory retirement, said benefits shall be exempt from income tax. However, if the employee receives from the BIR approved plan a retirement benefit in excess of the minimum retirement benefit provided by R.A. No. 7641 on compulsory retirement, he must satisfy the requirements or conditions of R.A. No. 4917, which means that he must be at least fifty (50) years old and must have served the company for at least ten (10) years in order that his retirement benefits may be tax exempt. Finally, retirement benefits received by employees not from a BIR approved retirement plan shall be governed by R.A. No. 7641. The opinion stemmed up from a case where several employees of GCHS since January 1, 1998 have been compulsorily retired after twenty (20) years of service, pursuant to Section 1, Article X of the GCHS Retirement Plan. These retirees, however, have not reached aged fifty (50). By reason of the opinion rendered, the benefits received by the retirees who were compulsory retired are tax exempt.
The above opinion should be reconciled with the ruling of the Bureau of Internal Revenue (BIR Ruling No. 052-2000 [2000]) which states:
“However, the Retirement Plan Rules and Regulations of a Company may provide that the normal retirement date or early/optional retirement date be more than what is required by the Tax Code. Consequently, in case of conflict between the Tax Code and the Retirement Plan Rules and Regulations, it is the latter that should prevail.”
“Such being the case, while Sec. 3 of the Retirement Plan Rules and Regulations provides that upon the attainment of at least age 55 or upon completion of twenty five (25) years of service the employee may be retired at the option of the company, the employee availing of the early/optional retirement must have rendered ten (10) years of service to the company or must be at least age fifty (50) years of age at the time of retirement, otherwise the retirement benefits to be paid to him shall be subject to income tax and consequently to withholding tax. In this particular case, although he is 51 years of age and has rendered 23 years of continuous service to the company, the retired employee is still not covered under the early/optional retirement for failure to comply with the conditions as provided in Sec. 3 of the said Plan i.e., attainment of at least age 55 or completion of twenty five (25) years of service. In fine, the retirement benefits to be paid to the said employee shall be subject to income tax and withholding tax prescribed under Section 57 (B) of the Tax Code of 1997, as implemented by Revenue Regulations No. 2-98.”
Thursday, July 14, 2011
The PCSO Senate Hearing
For two days, I have been watching the Senate Hearing Blue Ribbon Committee for its expose on the activities of the Philippine Charity Sweepstakes Office (PCSO). This was stemmed from a media exposition of the donations of SUVs to the Philippine bishops by the Philippine Charity Sweepstakes Office, allegedly in violation of the PCSO Charter. I could not help but make the following observations about the Senators conducting the investigation. This is where one should think of who should be at the Senate, whether such person deserve to be voted or not.
1) Senator Miriam Santiago -- I have been previously working 8:00 am to 5:00 pm in an office day job which prevented me from watching live telecasts of Senate Hearings. I am left with watching news and comments from journalists of what really transpired during the Senate Hearings ever since. But now that I have been at home considering my other life as a housewife, I was given the honor of watching the Honorable Senator Santiago give her legal opinion about the PCSO fiasco.
Initially, Senator Santiago was tasked to give a legal opinion on the validity of the donations to the bishops by the Philippine Charity Sweepstakes Office. She initially gave an introduction that only the Supreme Court can properly interpret the law, including the PCSO charter. Such interpretation should not be left to any government agency, including the Commission on Audit. She also cited the case of Aglipay vs. Ruiz (64 Phil. 201) that can be applicable to the validity of the donations given to the bishops by the PCSO. Her opinions before the Blue Ribbon Committee was exhaustive and well researched..... she had definitely done her homework and served the Filipino people very well. Although the applause after her presentation was initially commented as inappropriate, she definitely deserve the applause. And as I post this article, I will remember this day so that I can remember who are the hard working Senators that deserve to be voted.
2) Senator Jinggoy Estrada -- His questions were usually off key as they do not relate to the case at hand. He asks questions that could probably be left unanswered as it can no longer be recalled. There was an instance that he had to ask a question to a bishop that would emphasize the good deed that his father (former President Joseph Estrada) has personally made to the bishop being questioned. Can you consider that line of questioning as appropriate?
Nevertheless, I saw how Sen. Estrada conducted the examination and they were all intended to paint a good impression on what was achieved by the Estrada Administration. Is that being professional at all?
3) Senator Juan Ponce Enrile --- I am curious if Senator Enrile has been doing his homework when he initially prepared for the Senate Blue Ribbon Committee Hearing. All I can conclude is that he wanted to grill Manoling Morato all throughout the hearing. It was a good thing that Mr. Morato was honorable and such a gentlemen in answering all the sensitive questions of Senator Enrile. My point is that Senator Enrile was the former legal counsel of a party in interest in a lease agreement that previously handled a case that involved PCSO; that despite that conflict of interest, Sen. Enrile had the temerity to ask Mr. Morato about the lease agreement to paint a picture that Mr. Morato is "misleading the Committee". So I ask this question: Is Senator Enrile committing a conflict of interest when investigating the PCSO?
4) Senator Franklin Drilon -- Sen. Drilon's questions were all related to the case at bar. His demeanor during the Senate Hearing would make me doubt my previous choices. He was not off key; he was doing his job. His questions are related and not personal in nature. He wanted to ask questions on the Intelligence Fund being allocated to government owned and controlled corporations (GOCCs), national governments and local government units. To me, the line of questioning were all related as this involved release of funds to provide SUVs to bishops through the Intelligence Fund of the PCSO.
With the above being said, I am reconsidering my choices on who deserves to sit at the Senate. I will keep this post preserved.
1) Senator Miriam Santiago -- I have been previously working 8:00 am to 5:00 pm in an office day job which prevented me from watching live telecasts of Senate Hearings. I am left with watching news and comments from journalists of what really transpired during the Senate Hearings ever since. But now that I have been at home considering my other life as a housewife, I was given the honor of watching the Honorable Senator Santiago give her legal opinion about the PCSO fiasco.
Initially, Senator Santiago was tasked to give a legal opinion on the validity of the donations to the bishops by the Philippine Charity Sweepstakes Office. She initially gave an introduction that only the Supreme Court can properly interpret the law, including the PCSO charter. Such interpretation should not be left to any government agency, including the Commission on Audit. She also cited the case of Aglipay vs. Ruiz (64 Phil. 201) that can be applicable to the validity of the donations given to the bishops by the PCSO. Her opinions before the Blue Ribbon Committee was exhaustive and well researched..... she had definitely done her homework and served the Filipino people very well. Although the applause after her presentation was initially commented as inappropriate, she definitely deserve the applause. And as I post this article, I will remember this day so that I can remember who are the hard working Senators that deserve to be voted.
2) Senator Jinggoy Estrada -- His questions were usually off key as they do not relate to the case at hand. He asks questions that could probably be left unanswered as it can no longer be recalled. There was an instance that he had to ask a question to a bishop that would emphasize the good deed that his father (former President Joseph Estrada) has personally made to the bishop being questioned. Can you consider that line of questioning as appropriate?
Nevertheless, I saw how Sen. Estrada conducted the examination and they were all intended to paint a good impression on what was achieved by the Estrada Administration. Is that being professional at all?
3) Senator Juan Ponce Enrile --- I am curious if Senator Enrile has been doing his homework when he initially prepared for the Senate Blue Ribbon Committee Hearing. All I can conclude is that he wanted to grill Manoling Morato all throughout the hearing. It was a good thing that Mr. Morato was honorable and such a gentlemen in answering all the sensitive questions of Senator Enrile. My point is that Senator Enrile was the former legal counsel of a party in interest in a lease agreement that previously handled a case that involved PCSO; that despite that conflict of interest, Sen. Enrile had the temerity to ask Mr. Morato about the lease agreement to paint a picture that Mr. Morato is "misleading the Committee". So I ask this question: Is Senator Enrile committing a conflict of interest when investigating the PCSO?
4) Senator Franklin Drilon -- Sen. Drilon's questions were all related to the case at bar. His demeanor during the Senate Hearing would make me doubt my previous choices. He was not off key; he was doing his job. His questions are related and not personal in nature. He wanted to ask questions on the Intelligence Fund being allocated to government owned and controlled corporations (GOCCs), national governments and local government units. To me, the line of questioning were all related as this involved release of funds to provide SUVs to bishops through the Intelligence Fund of the PCSO.
With the above being said, I am reconsidering my choices on who deserves to sit at the Senate. I will keep this post preserved.
Davao Mayor-Sarah Duterte's feat of punching a sheriff
As I watched Davao Mayor Sarah Duterte's act of punching a Sheriff in front of TV cameras, I cannot help but analyze what could be her possible defenses.
In my personal experience as a lawyer and as a practitioner, I have had a negative experience in dealing with sheriffs, especially in execution of judgments. But that being said, let us deal and analyze the possible defense of the Honorable Mayor Sarah Duterte.
One has to look whether or not the element of "mens rea" is present in the case. By its concept, "mens rea" means criminal intent. I cannot help but observe that before Mayor Duterte punched the Sheriff, she has been talking and pleading to the officers explaining that she wanted to defer the execution of the judgment for two measly hours so that bloodshed among her affected constituents can be minimized. All throughout the conversation, all she had been voicing out (in Davao dialect) is that she wanted to minimize chaos and bloodshed..... an indicia that she had been thinking about the interest of her people. Initially, she had no intention of causing harm or committing a malicious act at all.
Were it not for the insistence that it was the Sheriff's order for the immediate execution that probably made Mayor Duterte desperate to save her people; and so Mayor Duterte had no choice during that time but to punch the Sheriff so that her voice can be heard and to insist on her pleads.
It is my analysis that the element of "mens rea" at that initial moment of pleading to stop the execution should be considered and taken into account. There was no criminal intention to commit an act, therefore, there is no criminal liability.
Mayor Duterte is "a person who acts in the fulfillment of a duty," therefore, her actions should be considered a justifying circumstance under Article 11 No. 5 of the Revised Penal Code.
Reference:
Ombudsman moves to investigate Sarah Duterte
Philippines Female Mayor Punches Out Sheriff
In my personal experience as a lawyer and as a practitioner, I have had a negative experience in dealing with sheriffs, especially in execution of judgments. But that being said, let us deal and analyze the possible defense of the Honorable Mayor Sarah Duterte.
One has to look whether or not the element of "mens rea" is present in the case. By its concept, "mens rea" means criminal intent. I cannot help but observe that before Mayor Duterte punched the Sheriff, she has been talking and pleading to the officers explaining that she wanted to defer the execution of the judgment for two measly hours so that bloodshed among her affected constituents can be minimized. All throughout the conversation, all she had been voicing out (in Davao dialect) is that she wanted to minimize chaos and bloodshed..... an indicia that she had been thinking about the interest of her people. Initially, she had no intention of causing harm or committing a malicious act at all.
Were it not for the insistence that it was the Sheriff's order for the immediate execution that probably made Mayor Duterte desperate to save her people; and so Mayor Duterte had no choice during that time but to punch the Sheriff so that her voice can be heard and to insist on her pleads.
It is my analysis that the element of "mens rea" at that initial moment of pleading to stop the execution should be considered and taken into account. There was no criminal intention to commit an act, therefore, there is no criminal liability.
Mayor Duterte is "a person who acts in the fulfillment of a duty," therefore, her actions should be considered a justifying circumstance under Article 11 No. 5 of the Revised Penal Code.
Reference:
Ombudsman moves to investigate Sarah Duterte
Philippines Female Mayor Punches Out Sheriff
Tuesday, June 7, 2011
Can an email correspondence be considered evidence in Philippine Courts
The answer is YES. Under A.M. NO. 01-7-01-SC.- RE: RULES ON ELECTRONIC EVIDENCE, an email correspondence can be considered evidence under Philippine Courts. A printout copy of such email correspondence may be presented as evidence and can be classified as an original document under the "Best Evidence Rule" if it is a printout or output which is readable, and shown to reflect the data accurately.
Further, Rule 5 Section 2 of A.M. NO. 01-7-01-SC provides for the manner of proving the authenticity of email correspondences in Philippine Courts. Accordingly, the person seeking to introduce an email correspondence or electronic document in any legal proceeding has the burden of proving its authenticity.
Therefore, before any electronic document offered is received in evidence by the courts, its authenticity must be proved by any of the following means:
(a) by evidence that it had been digitally signed by the person purported to have signed the same;
(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.
Full Text of the RULES ON ELECTRONIC EVIDENCE
Further, Rule 5 Section 2 of A.M. NO. 01-7-01-SC provides for the manner of proving the authenticity of email correspondences in Philippine Courts. Accordingly, the person seeking to introduce an email correspondence or electronic document in any legal proceeding has the burden of proving its authenticity.
Therefore, before any electronic document offered is received in evidence by the courts, its authenticity must be proved by any of the following means:
(a) by evidence that it had been digitally signed by the person purported to have signed the same;
(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.
Full Text of the RULES ON ELECTRONIC EVIDENCE
Monday, May 30, 2011
Law on Business Organizations in the Philippines
The following are the different types of business organizations that one may choose in putting up a business in the Philippines:
a) Sole Proprietorship -- It is the oldest form of business which is owned and usually controlled by one person.
Advantages:
(i) Easiest to form;
(ii) Owner is entitled to all the profits;
(iii) All decisions are the owner’s to make;
(iv) The owner may end the business at any time.
Disadvantages:
(i) Owner usually operates with a limited amount of capital;
(ii) The danger of unlimited liability;
(iii) Owner may not be skilled in running the business.
b) Partnership -- Governed by the Civil Code of the Philippines. There is a partnership when two or more persons contribute money, property or industry to a common fund with the intention of dividing the profits among themselves.
Advantages:
(i) Easy to form;
(ii) Direct rewards;
(iii) Improved growth possibilities;
(iv) Easier to execute decisions than in a corporation; More difficult than it would in a sole proprietorship.
Disadvantages:
(i) Unlimited liability;
(ii) Instability;
(iii) Difficulty in obtaining long term capital;
(iv) Firm is tied to the acts and judgments of one partner as agent
(v) Difficulty in severing partnership ties.
c) Corporation -- Governed by Governed by Batas Pambansa Blg. 68, also known as “Corporation Code of the Philippines”. A Corporation is an artificial being, created by operation of law, having the right of succession, and the powers, attributes and properties expressly authorized by law or incident to its existence.
Advantages:
(i) Limited liability;
(ii) Continuity of existence;
(iii) Selling stock in the corporation;
(iv) Professionalism.
Disadvantages:
(i) Complicated to form;
(ii) Activities limited by charter and various laws;
(iii) Extensive government regulations;
(iv) Double taxation which implies that a corporation can be taxed while its stockholders may also be taxed on the basis of the dividends received.
Related Articles:
Tips on Incorporating under Philippine Laws
a) Sole Proprietorship -- It is the oldest form of business which is owned and usually controlled by one person.
Advantages:
(i) Easiest to form;
(ii) Owner is entitled to all the profits;
(iii) All decisions are the owner’s to make;
(iv) The owner may end the business at any time.
Disadvantages:
(i) Owner usually operates with a limited amount of capital;
(ii) The danger of unlimited liability;
(iii) Owner may not be skilled in running the business.
b) Partnership -- Governed by the Civil Code of the Philippines. There is a partnership when two or more persons contribute money, property or industry to a common fund with the intention of dividing the profits among themselves.
Advantages:
(i) Easy to form;
(ii) Direct rewards;
(iii) Improved growth possibilities;
(iv) Easier to execute decisions than in a corporation; More difficult than it would in a sole proprietorship.
Disadvantages:
(i) Unlimited liability;
(ii) Instability;
(iii) Difficulty in obtaining long term capital;
(iv) Firm is tied to the acts and judgments of one partner as agent
(v) Difficulty in severing partnership ties.
c) Corporation -- Governed by Governed by Batas Pambansa Blg. 68, also known as “Corporation Code of the Philippines”. A Corporation is an artificial being, created by operation of law, having the right of succession, and the powers, attributes and properties expressly authorized by law or incident to its existence.
Advantages:
(i) Limited liability;
(ii) Continuity of existence;
(iii) Selling stock in the corporation;
(iv) Professionalism.
Disadvantages:
(i) Complicated to form;
(ii) Activities limited by charter and various laws;
(iii) Extensive government regulations;
(iv) Double taxation which implies that a corporation can be taxed while its stockholders may also be taxed on the basis of the dividends received.
Related Articles:
Tips on Incorporating under Philippine Laws
Philippine Business Laws
In this article, I will be discussing Philippine Business Laws. This article is the same lecture I conducted last May 21, 2011 for students taking Master in Business Administration at the Central Colleges of the Philippines.
In a nutshell, the following are the different laws related to business in the Philippines:
I. LAW ON BUSINESS ORGANIZATIONS -- The following are the different types of business organizations that one may choose in putting up a business: Sole Proprietorship, Partnership, Corporation.
II. THE BARANGAY MICRO BUSINESS ENTERPRISE (BMBE) LAW or REPUBLIC ACT NO. 9178. This law encourages the formation and growth of barangay micro business enterprises which effectively serve as seedbeds of Filipino entrepreneurial talents.
III. LAW ON OBLIGATIONS AND CONTRACTS. This is governed by Articles 1156 upto 1430 of the Civil Code of the Philippines.
IV. LAW ON SALES, AGENCY & CREDIT TRANSACTIONS. This is governed by the Civil Code of the Philippines, specifically Articles 1458-1618 (Sales); Articles 1868-1932 (Agency); and Articles 1933-1995 (Credit Transactions).
V. MORTGAGE LAW. Mortgage involves the transfer of an interest in land or chattel as security for a loan or other obligation. The laws involving mortgage are Commonwealth Act No. 3135 as amended by Act 4118 (An act to regulate the sale of property under special powers in or annexed to real estate mortgages) and Commonwealth Act No. 1508 (Chattel Mortgage Law).
VI. LAWS RELATED TO INVESTMENT AND FINANCING.
a) Foreign Investment Act of 1991 -- Republic Act 7042 as amended by Republic Act 8179 provides for the policy that foreigners can now invest in all activities and enterprises in the Philippines, except those covered in the Negative List. Foreign Investments may seek incentives under the Omnibus Investment Code, such as tax holidays.
b) Built-Operate and Transfer Law -- Republic Act No. 6987 as amended by Republic Act 7718 (BOT Law) implements the policy of the state to recognize the indispensable role of the private sector as the main engine for national growth and development and provide the most appropriate favorable incentives to mobilize the private resources for the purpose.
c) Laws on Applicable Documents of Title. Commonwealth Act No. Act No. 2031, also known as the Negotiable Instruments Law, provides for the concept of a promissory note, bill of exchange and checks. Presidential Decree No. 115, also known as the Trust Receipt Law provides for the regulation of Trust Receipt transactions. Commonwealth Act No. 2137 (Warehouse Receipt Law) seeks to encourage transactions on negotiable warehouse receipts, which may be issued by a warehouseman engaged in the business of receiving commodities on deposit for storage.
d) Access Devices Regulation Act. Republic Act No. 8484 seeks to protect the rights and define the liabilities of parties who deal in credit cards and access devices.
e) Bouncing Check Law. Batas Pambansa Blg. 22 penalizes the mere issuance of worthless checks in payment of a pre-existing obligation. Under Administrative Circular No. 13-2001 issued on February 14, 2001 by the Supreme Court of the Philippines, A.C. 12-2000 does not remove imprisonment as an alternative penalty for violations of Batas Pambansa Blg. 22. In this regard, judges of Philippine courts are given discretion to determine whether the mere imposition of fine would best serve the interest of justice.
f) E-commerce Law. Republic Act No. 8792 penalizes hacking or cracking through unauthorized access or interference in a computer system/server and communication system involving e-banking transactions.
VII. LAW ON INSURANCE. An insurance is a contract whereby one party, for a consideration, agrees to indemnify another, against loss, damage, liability arising out of an unknown or contingent event. This is governed by P.D. 612 as amended by P.D. 1460 instituting the Insurance Code.
VIII. LABOR LAW.
a) Presidential Decree No. 442, also known as the Labor Code of the Philippines, provides for the rights of workers, including the minimum labor standards that should be provided to every worker. Some of the basic rights of workers include: right to a fair wage, right to equal employment opportunities to all, right to self-organization and collective bargaining, right of labor to a just fruits of production, security of tenure, hours of work, weekly rest day, wage and wage related benefits, safe and healthful conditions of work, and peaceful concerted activities including the right to strike in accordance with law.
b) Republic Act No. 7877 also known as the Sexual Harassment Act of 1995.
IX. INTELLECTUAL PROPERTY LAW.. Under Republic Act No. 8293, also known as the Intellectual Property Code of the Philippines, such law is enacted to streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines.
X. TAX LAWS.
a) Taxes on income. An active business income earned by an individual is subject to graduated rates of tax between 5-32% after deducting personal exemptions. For a corporation, a flat rate of 30% is imposed. Lastly, passive income shall be subject to withholding taxes.
b) Value Added Tax. A 12% tax shall be imposed on any person who, in the course of trade or business sells, barters and exchanges, leases goods, or renders services, or who imports goods.
Related Articles:
Law on Obligations and Contracts (Part 3)
Loan Agreements and Stipulations for Commercial Contracts
Requirements of banks for loan accommodations
Commercial documents necessary for loan availment by companies
Role of banks in Financing
Philippine Insurance Law (Insurable Interest in Group Insurance)
Labor Legislation related to the tourism and hospitality industry in the Philippines
Best Labor Practices in the Hospitality Industry
What is infringement under Philippine copyright laws?
What are the works covered by copyright protection under the Intellectual Property Code of the Philippines
Who is the owner of the copyright under Philippines Laws?
In a nutshell, the following are the different laws related to business in the Philippines:
I. LAW ON BUSINESS ORGANIZATIONS -- The following are the different types of business organizations that one may choose in putting up a business: Sole Proprietorship, Partnership, Corporation.
II. THE BARANGAY MICRO BUSINESS ENTERPRISE (BMBE) LAW or REPUBLIC ACT NO. 9178. This law encourages the formation and growth of barangay micro business enterprises which effectively serve as seedbeds of Filipino entrepreneurial talents.
III. LAW ON OBLIGATIONS AND CONTRACTS. This is governed by Articles 1156 upto 1430 of the Civil Code of the Philippines.
IV. LAW ON SALES, AGENCY & CREDIT TRANSACTIONS. This is governed by the Civil Code of the Philippines, specifically Articles 1458-1618 (Sales); Articles 1868-1932 (Agency); and Articles 1933-1995 (Credit Transactions).
V. MORTGAGE LAW. Mortgage involves the transfer of an interest in land or chattel as security for a loan or other obligation. The laws involving mortgage are Commonwealth Act No. 3135 as amended by Act 4118 (An act to regulate the sale of property under special powers in or annexed to real estate mortgages) and Commonwealth Act No. 1508 (Chattel Mortgage Law).
VI. LAWS RELATED TO INVESTMENT AND FINANCING.
a) Foreign Investment Act of 1991 -- Republic Act 7042 as amended by Republic Act 8179 provides for the policy that foreigners can now invest in all activities and enterprises in the Philippines, except those covered in the Negative List. Foreign Investments may seek incentives under the Omnibus Investment Code, such as tax holidays.
b) Built-Operate and Transfer Law -- Republic Act No. 6987 as amended by Republic Act 7718 (BOT Law) implements the policy of the state to recognize the indispensable role of the private sector as the main engine for national growth and development and provide the most appropriate favorable incentives to mobilize the private resources for the purpose.
c) Laws on Applicable Documents of Title. Commonwealth Act No. Act No. 2031, also known as the Negotiable Instruments Law, provides for the concept of a promissory note, bill of exchange and checks. Presidential Decree No. 115, also known as the Trust Receipt Law provides for the regulation of Trust Receipt transactions. Commonwealth Act No. 2137 (Warehouse Receipt Law) seeks to encourage transactions on negotiable warehouse receipts, which may be issued by a warehouseman engaged in the business of receiving commodities on deposit for storage.
d) Access Devices Regulation Act. Republic Act No. 8484 seeks to protect the rights and define the liabilities of parties who deal in credit cards and access devices.
e) Bouncing Check Law. Batas Pambansa Blg. 22 penalizes the mere issuance of worthless checks in payment of a pre-existing obligation. Under Administrative Circular No. 13-2001 issued on February 14, 2001 by the Supreme Court of the Philippines, A.C. 12-2000 does not remove imprisonment as an alternative penalty for violations of Batas Pambansa Blg. 22. In this regard, judges of Philippine courts are given discretion to determine whether the mere imposition of fine would best serve the interest of justice.
f) E-commerce Law. Republic Act No. 8792 penalizes hacking or cracking through unauthorized access or interference in a computer system/server and communication system involving e-banking transactions.
VII. LAW ON INSURANCE. An insurance is a contract whereby one party, for a consideration, agrees to indemnify another, against loss, damage, liability arising out of an unknown or contingent event. This is governed by P.D. 612 as amended by P.D. 1460 instituting the Insurance Code.
VIII. LABOR LAW.
a) Presidential Decree No. 442, also known as the Labor Code of the Philippines, provides for the rights of workers, including the minimum labor standards that should be provided to every worker. Some of the basic rights of workers include: right to a fair wage, right to equal employment opportunities to all, right to self-organization and collective bargaining, right of labor to a just fruits of production, security of tenure, hours of work, weekly rest day, wage and wage related benefits, safe and healthful conditions of work, and peaceful concerted activities including the right to strike in accordance with law.
b) Republic Act No. 7877 also known as the Sexual Harassment Act of 1995.
IX. INTELLECTUAL PROPERTY LAW.. Under Republic Act No. 8293, also known as the Intellectual Property Code of the Philippines, such law is enacted to streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines.
X. TAX LAWS.
a) Taxes on income. An active business income earned by an individual is subject to graduated rates of tax between 5-32% after deducting personal exemptions. For a corporation, a flat rate of 30% is imposed. Lastly, passive income shall be subject to withholding taxes.
b) Value Added Tax. A 12% tax shall be imposed on any person who, in the course of trade or business sells, barters and exchanges, leases goods, or renders services, or who imports goods.
Related Articles:
Law on Obligations and Contracts (Part 3)
Loan Agreements and Stipulations for Commercial Contracts
Requirements of banks for loan accommodations
Commercial documents necessary for loan availment by companies
Role of banks in Financing
Philippine Insurance Law (Insurable Interest in Group Insurance)
Labor Legislation related to the tourism and hospitality industry in the Philippines
Best Labor Practices in the Hospitality Industry
What is infringement under Philippine copyright laws?
What are the works covered by copyright protection under the Intellectual Property Code of the Philippines
Who is the owner of the copyright under Philippines Laws?
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