My experience as an independent contractor for the first month of January 2011

January, 2011 is a challenging month for me.    I have accepted a position which entails managing an online office, and practicing my skills in technical writing, business research and human resource management at a maximum level.  It is a surprise that I still managed to accept contract drafting jobs and contract analysis.  In conclusion, I consider this month to be my most challenging and happiest to date.

I got to open my account in Skills Page and started to plug in a lot of my activities related to the skills I specialize.  For more details, please see my skills page at www.skillpages.com/christine.carpio-aldeguer.

For the most part, working online as an independent contract is not bad considering you get to work at home with nothing to worry on other overhead expense such as transportation, clothing and make-up.  The efforts  I have done for the month proved to be very productive.  

Aside from having fun from the work that I  experienced for this month, the excellent feedback from clients provided a bonus for my self-esteem.  This is without prejudice that my profile picture has been featured as a homepage in Odesk,  my official  home for seeking international clients online.   Anyway,  I posted this blog after so many attempts of thinking what kind of article I should post for the day.  I guess this post is a very special post.  It is my way of zoning out for a while so that I can start writing articles for next month.  
 

What is a Non-disclosure Agreement?

A non-disclosure agreement (also known as NDA) is an agreement entered between two contracting parties namely: disclosing party and receiving party, who wish to share confidential information to each other.  The NDA as a legal document is being executed to prohibit the receiving party from divulging such confidential information to any third person, otherwise, damages or any right of action may be claimed by the disclosing party.

Non-disclosure agreements are utilized in employment contracts, independent contractorship agreements, and business opportunity transactions, whereby the receiving party is authorized to receive proprietary information from the disclosing party.  Such proprietary information may include contact information of clients, marketing plans and business plans which cannot be known to outside competitors, trade secrets, marketing and business proposals, intellectual property or inventions that cannot be made public in the meantime.

Executing a non-disclosure agreement is the modern trend so as to protect the interest of the disclosing party from loss of revenues due to the disclosure or theft of proprietary or confidential information which may be claimed by competitors or any interested persons.

The following are the usual items contained in a non-disclosure agreement:

• The parties to the agreement, including their addresses or contact information; 
• Coverage of the confidential information that cannot be disclosed to third persons; 
• Information which is excluded from the coverage; 
• Obligations of the receiving party regarding the use of the confidential information ;
• Circumstances where disclosure of confidential information is permitted (i.e. court order, or order from the proper governmental agency); 
• The duration of the confidentiality, the law governing the confidentiality, and the venue of action in case of breach.

The Constitutional Power of Pardon by the President

Where the Department of Justice (DOJ-Phillippines) Secretary Leila de Lima may be charged with contempt resulting from her directive of barring former Philippine President Gloria Macapagal Arroyo from leaving the country due to the latter's impending plunder and electoral sabotage charges despite the "immediately executory" Temporary Restraining Order (TRO) issued by the Supreme Court, the usual bonding analysis which my father (Atty. Macario D. Carpio) and I share together seems to be an enlightening one. Hence, it lead to me to write this article.

What is worth reviewing is Section 19 Article VII of the Philippine Constitution which states: "Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutation, and pardons, and remit fines and forfeiture, after conviction by final judgment". What can be applicable to this case is the power of the President to grant "pardon" as specifically provided under the Philippine Constitution.

By way of definition, "pardon" is an act of grace, proceeding from the power entrusted with the execution of the laws which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is a rule that every pardon granted makes the law inequitable. The term "law" may consist of rules enacted by the Supreme Court of the Philippines, such as the Rules of Court. The pardoning power (as granted to the President under the Constitution) is vested in order to prevent injustice.

Pardon is classified as general, special, absolute and conditional. A general pardon presupposes that an act of the legislature is passed expressly directing the offense of a certain class. Special pardons are those which are granted by the pardoning power for particular cases. Absolute pardons are those which free the criminal without any condition whatsoever. Conditional pardons are those which must be performed before the pardon can have any effect.

Under the Philippine Constitution, there is no requirement that the pardoning power should seek consent from any branch of the government, except on the power to grant amnesty, which requires concurrence of the majority of all the Members of Congress. (See Section 19, Article VII, Philippine Constitution). That being said, the pardoning power of the President is wide and all-encompassing.

How can this be applied to DOJ Secretary Leila de Lima? The President can always grant her a special absolute pardon in case she will be held guilty of contempt by the Supreme Court in violation of the Rules of Court. A person found guilty of contempt provides a penalty of a fine and/or imprisonment, therefore classified as a criminal liability. Since a pardon may be granted in favor of someone committing a criminal offense, it is my opinion that "contempt" constitutes a criminal offense where the grant of pardon may be applicable.

Something that we can ponder, but I think the Office of the President already knows this just in case the worst thing happens. But regardless of what can happen, and regardless of the opinions of the legal luminaries on this matter, let us just hope that the ends of justice will prevail.

Article Reference:

De Lima Ready to Face Contempt Charges

TheLaw.com (The Law Network, LLC)

Advantages of being a generalist

A generalist has a lot of advantages. Although there can be additional perks for specializing in a certain field, being a generalist may help you survive in a globally competitive world. A generalist helps you become available in the market, and will provide you more work. Although your present work experience may help you realize that you are already specializing in a certain field, being a generalist provides you with more work opportunities in a broader audience.

The following are tips to become a successful generalist:

1. Be open-minded. Learning new things allows you to get out of your comfort zone. It helps you enrich your mind and lets you explore a new wave of ideas. If you are psychologically ready to accept new ideas, it lessens the stress, you become inspired, it makes life interesting, and enhances your intellectual capability.

2. Be updated at all times. Invest your time for seminars, social networking and other means to be updated. The internet keeps you updated on the latest technology. Being up to date helps you become more rounded and may help you revolutionize your way of thinking.

3. Focus. Putting your mindset to everything is key. Never become sluggish and always stay positive.

Becoming a generalist is a fun endeavor. That is why it is time to start learning other areas in business. The economic conditions have changed and taking a bold step in becoming a generalist may be the only ride for you to succeed.

The concept of collective bargaining

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.

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.”

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.