Holiday blues? Maybe not. (Pay Rules for the long year-end holiday in 2008)

By Siesta-friendly

If, you’ve been caught up with shopping (blues?) and have forgotten, there’s an 8-day long holiday nearing. And here are the pay rules for this unusual holiday break.

Remember that December 25 (Christmas Day), December 30, 2008 (Rizal Day) and January 1, 2009 (New Year's Day) are regular holidays. While December 26 (the Friday caught between Christmas Day and the weekend), December 29 (the Monday caught between the weekend and Rizal Day), and December 31, 2008 (Last Day of the Year) are special non-working days declared so by Her Shortness.

The DOLE has been kind enough (or maybe they just don’t want to be bothered during their Christmas parties) to issue the rules regarding pay on said regular holidays and special non-working days as follows:

A. For the regular holidays on December 25 (Christmas Day) and December 30, 2008 (Rizal Day), and January 1, 2009 (New Year's Day):

1. If it is the employee's regular workday:

• and he/she works, the pay is 200% of his/her basic wage for the first 8 hours and, for work in excess of the 8 hours, an additional 30% of his/her hourly rate on said day;
• and he/she decides to just go shopping or skip town to avoid the godchildren, he/she is entitled to 100% of his/her daily rate, provided he/she was present or was on leave with pay on the workday immediately preceding the holiday. (but see no.3 below)

2. If it is the employee's rest day:

• if worked, the pay is, for the first 8 hours, 200% of his/her daily rate add 30% and, for work in excess of 8 hours, plus 30% of his hourly rate on the said day;
• if unworked, the pay is 100% of his/her daily rate, provided he was present or was on leave with pay on the workday immediately preceding the holiday. (but see no.3 below)

3. Where the day immediately preceding the holiday is a non-work day in the establishment or the scheduled rest day of the employee, he/she shall not be deemed on leave of absence on that day, in which case he/she shall be entitled to the holiday pay.

B. For the special (non-working) days on December 26 and 29, and December 31, 2008 (Last Day of the Year):

1. if worked, the pay is 130% of his/her daily rate for the first 8
hours, plus 30% of his/her hourly rate on said day for work performed in excess of 8 hours;
2. if worked and falling on the employee's rest day, the pay is, for the first 8 hours, 150% of his/her regular daily rate, and for work performed in excess of 8 hours, plus 30% of his/her hourly rate on said day;
3. if unworked, he/she is not entitled to any payment, unless there is a favorable company policy, practice or collective bargaining agreement (CBA) granting payment for special days even if not worked.

Still confused? Just call the DOLE's Bureau of Working Conditions (BWC) at tel. nos. 920-2381 and/or 920-2482. Good luck!

Oh, and Happy Holidays!

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December 18: International Migrants Day (And the Migrant Workers Convention)

By Siesta-friendly

In this country, everyday could well be International Migrants Day for without the OFWs our country would have sunk a long, long time ago. We’re likely still going down but the OFW remittances are keeping us afloat, for now.

But, let’s focus on our migrant workers and the legal provisions set in place for their protection. To be clear, the Convention does not give them special rights but basically emphasizes their human rights to ensure respect for, and protection of, the same wherever they may end up especially since they are foreigners, a minority, likely uneducated and poor in their country of employment and thus vulnerable to discrimination or exploitation of all kinds, women in particular.

As always, for a better understanding, the full text should be read which may be found here: Migrant Workers’ Convention.

Who are Migrant Workers

Its funny but with a very large migrant population, our law on migrant workers (the Migrant Workers and Overseas Filipinos Act of 1995) seems already antiquated. Fortunately, we are signatory to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (in force since July 1, 2003) which is more in tune with the times.

For instance, the Act defines a migrant worker as a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a country of which he/she is not a legal resident. (Section 3a) While the Convention defines the worker similarly but one engaged in a country of which he/she is not a national. It is quite possible nowadays that a migrant worker is also a legal resident of his/her place of work. (Article 2.1)

And while the Act is silent, the Convention specifically defines "frontier worker" (one who retains habitual residence in a country to which he/she normally returns at least once a week); "seasonal worker" (whose work depends on seasonal conditions and performed only part of the year); "seafarer" (one, including a fisherman, employed on board a vessel registered in a country of which he/she isn’t a national); "worker on an offshore installation" (employed on an offshore installation under the jurisdiction of a country of which he/she isn’t a national); "itinerant worker'' (one having habitual residence in one country and has to travel to another country for short periods, owing to the nature of his/her occupation; "project-tied worker" (worker admitted to a country of employment for a defined period to work solely on a specific project being carried out in that country by his/ her employer). (Article 2.2)

It’s also enlightening to know who are not deemed migrant workers a) those sent or employed by international organizations and agencies or by a country outside its territory to perform official functions, whose admission and status are regulated by general international law or by specific international agreements or conventions; b) those sent or employed by a country or on its behalf outside its territory who participate in development or co-operation programmes, whose admission and status are regulated by agreement with the country of employment and who, in accordance with that agreement, are not considered migrant workers; c) those taking up residence in a country different from their country of origin as investors; d) refugees and stateless persons, unless such application is provided for in the relevant national legislation of, or international instruments in force for, the country concerned; e) students and trainees; f) seafarers and workers on an offshore installation who have not been admitted to take up residence and engage in a remunerated activity in the country of employment. (Article 3)

Migrant Workers’ Rights (Documented or not)

As mentioned earlier, they’re fundamental human rights and the Convention makes them applicable to their family members.

Basic Human Rights:

1. Non-discrimination on account of “sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status” (Article 7)
2. Freedom of Movement (Article 8)
3. Freedom against “torture or to cruel, inhuman or degrading treatment or punishment” (Article 10)
4. Freedom against “slavery or servitude” and “forced or compulsory labour” (Article 11)
5. Freedom of thought, conscience and religion (Article 12)
6. Freedom of expression (Article 13)
7. Right to privacy (Article 14)
8. Right to property (Article 15)

Due Process Rights

9. Right to liberty and security of person, including freedom against “violence, physical injury, threats and intimidation” and “arbitrary arrest or detention”. If arrested, right to be promptly informed of the charges in a language they understand. (Article 16)

When a migrant worker or a family member is arrested or committed to prison or custody pending trial or is detained in any other manner:

1. His/her country’s diplomatic authorities shall, if he/she requests, be informed without delay of the arrest or detention and of the reasons therefor;
2. He/she has the right to communicate with said authorities. Such communication shall be forwarded without delay, and he/ she shall also have the right to receive communications sent by said authorities without delay;
3. He/she shall be informed without delay of this right and of rights deriving from applicable treaties, if any, to correspond and to meet with representatives of said authorities and to make arrangements with them for legal representation.
4. He/she is entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of their detention and order their release if the detention is not lawful. When they attend such proceedings, they shall have the assistance, if necessary without cost to them, of an interpreter, if they cannot understand or speak the language used. (Article 16.7 – 8 )
5. He/she has the right to be treated with humanity and with respect for the inherent dignity of the human person and for their cultural identity. (Article 17.1)
6. If a migrant worker or a member of his or her family is detained for the purpose of verifying any infraction of provisions related to migration, he or she shall not bear any costs arising therefrom. (Article 17.8).
7. He/she has the right to due process (Article 18)

Migrant workers and family members who are victims of unlawful arrest or detention have an enforceable right to compensation. (Article 16.9)

Humanitarian considerations related to the migrant worker’s status, in particular with respect to right of residence or work, should be taken into account in imposing a sentence for the crime committed by a migrant worker or family member. (Article 19)

No migrant worker or family member shall be imprisoned, deprived of authorization of residence or work permit or expelled merely for failure to fulfill a contractual obligation. (Article 20)

10. Right not to be subject to collective expulsion. (Article 22)
11. Right to have recourse to the protection and assistance of consular or diplomatic authorities. (Article 23)

Employment rights:

12. Right to enjoy treatment not less favourable than that which applies to nationals of the country of employment in respect of remuneration and: a) other conditions of work, and b) other terms of employment. (Article 25)
13. Freedom of association. (Article 26)
14. Right to enjoy social security with the same treatment as nationals of the country of employment similar circumstances (Article 27)
15. Right to receive any medical care for the preservation of life or the avoidance of irreparable harm to health on the basis of equality of treatment with nationals of the country concerned. (Article 28)

Cultural, Education and Economic Rights:

16. Each child of a migrant worker shall have the right to a name, to registration of birth and to a nationality. (Article 29)
17. Each child of a migrant worker shall have the basic right of access to education on the basis of equality of treatment with nationals of the country concerned. (Article 30)
18. Right to cultural identity and to maintain links with country of origin (Article 31)
19. Right to transfer their earnings and savings and personal effects and belongings. (Article 32)

Right to be informed of rights under the Convention:

20. Right to be informed by the country of origin/employment/ transit of a) their Convention rights; b) conditions of their admission, rights and obligations under the law and practice of the country concerned and other matters as will enable them to comply with administrative or other formalities in that country. (Article 33)

Migrant Workers’ Rights (Those documented only)

1. Right to be informed by the country of origin/employment of all conditions applicable to their admission, their stay and work. (Article 37)
2. Right to be temporarily absent without effect upon their stay or work. (Article 38)
3. Right to liberty of movement in the country of employment and freedom to choose their residence. (Article 39)
4. Right to form associations and trade unions (Article 40)
5. Right to participate in the public affairs of their country of origin (Article 41)
6. Equal treatment with nationals of the country of employment in relation to: a) access to education; b) access to vocational guidance and placement services; c) access to vocational training and retraining facilities and institutions; d) access to housing, including social housing schemes, and protection against exploitation in respect of rents; e) access to social and health services; f) access to co-operatives and self-managed enterprises; g) access to and participation in cultural life. (Article 45)
7. Enjoy exemption from import and export duties and taxes in respect of their personal and household effects as well as the equipment necessary to work. (Article 46)
8. Right to transfer earnings and savings. (Article 47)
9. Right not to be liable to taxes, duties or charges of any description higher or more onerous than those imposed on nationals in similar circumstances; and be entitled to deductions or exemptions from taxes of any description and to any tax allowances applicable to nationals in similar circumstances, including tax allowances for dependent members of their families. (Article 48)

Remedies

Countries that signed the Convention undertake:

a) to ensure that any person whose rights are violated shall have an effective remedy;
b) to ensure that any persons seeking such a remedy shall have his/ her claim reviewed and decided by competent judicial, administrative or legislative authorities, and to develop the possibilities of judicial remedy;
c) to ensure that competent authorities shall enforce such remedies when granted. (Article 83)

Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families

For the purpose of reviewing the Convention’s application, a Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families has been established comprising 14 experts of high moral standing, impartiality and recognized competence in the field covered by the Convention. (Article 72.1)

The Committee may receive complaints filed by countries party to the Convention as well as individual migrant workers.

In the case of individual complaints, the Committee shall consider the same only if:

a) the matter has not been, and is not being, examined under another procedure of international investigation or settlement;
b) the individual has exhausted all available domestic remedies; unless the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the individual.

Despite their guaranteed human rights, and more and more focus on their plight, thousands of migrant workers are still disadvantaged. There are loads of issues surrounding migrant workers, discrimination, abuse, family separation, to name a few crucial ones. The migrant worker need not even be poor to be subjected to all these issues.

The migrants’ countries of employment, since they thrive directly from migrants’ work, must commit to respect and protect their rights. And the migrants’ countries of origin must ensure protection of their nationals’ welfare. Migrants must also be fully aware of their rights and the obligations of their countries of origin and employment. That is the ideal to be reached. And on December 18, if not always, we must all (migrants or not) appreciate the migrants’ contribution and sacrifices for we are most likely beneficiaries wherever we maybe.

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For a Quantum of Solace (Appoint an Agent)

By Siesta-friendly

For some measure of comfort or a little peace of mind, you want something done but can’t do it yourself personally. You may have tons of work/activities to do or are perhaps abroad and can’t accomplish much from there. And so you decide to appoint an agent to finally carry out whatever it is you can’t get done personally. He may not be the 007 kind and will only act with as much license as you give him. But he’s an agent nonetheless or one who, under Art. 1868 of the Civil Code, “binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of the latter.”

Below are some basic principles to enlighten you on your obligations as principal and those of your agent, as well as the principal-agent relationship as a whole.

Existence of Agency and Special Powers of Attorney

How do you appoint an agent? Well, the agency “may be oral, unless the law requires a specific form.” It may also be “express, or implied from the acts of the principal, from his silence or lack of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority.” (Art. 1869, Civil Code). In the same light, the agent’s acceptance may also be express, or implied from his acts which carry out the agency, or from his silence or inaction according to the circumstances. (Art. 1870)

Special powers of attorney are necessary in the following cases:

1) to make payments not usually considered as acts of administration;

2) to effect novations which put an end to obligations in existence at the time the agency was constituted;

3) to compromise, to submit questions to arbitration, to renounce the right to appeal from a judgment, to waive objections to the venue of an action or to abandon a prescription already acquired;

4) to waive any obligation gratuitously;

5) to enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration. In fact, Art. 1874 specifically provides that when a sale of a piece of land or any interest therein is through an agent, the agent’s authority shall be in writing; otherwise, the sale is void.

6) to make gifts, except customary ones for charity or those made to employees in the business managed by the agent;

7) to loan or borrow money, unless the latter act be urgent and indispensable for the preservation of the things which are under administration;

8) to lease any real property to another person for more than one year;

9) to bind the principal to render some service without compensation;

10) to bind the principal in a contract of partnership;

11) to obligate the principal as a guarantor or surety;

12) to create or convey real rights over immovable property;

13) to accept or repudiate an inheritance;

14) to ratify or recognize obligations contracted before the agency;

15) any other act of strict dominion. (Art. 1878)

Special powers of attorney must specifically indicate the specific powers above mentioned. “An agency couched in general terms comprises only acts of administration, even if the principal should state that he withholds no power or that the agent may execute such acts as he may consider appropriate, or even though the agency should authorize a general and unlimited management.” (Art. 1877)

A couple more reminders: “A special power to sell excludes the power to mortgage; and a special power to mortgage does not include the power to sell.” (Art. 1879) “A special power to compromise does not authorize submission to arbitration.” (Art. 1880)

Agent’s Obligations

Of course, the Civil Code provides more than a few. They’re pretty straightforward, so here they are:

The agent shall act in accordance with the instructions of the principal. If there are no particular instructions, he shall do all that a good father of a family would do, as required by the nature of the business. (Art. 1887)

If the agent has been empowered to borrow money, he may himself be the lender at the current rate of interest. If he has been authorized to lend money at interest, he cannot borrow it without the consent of the principal. (Art. 1890)

Every agent is bound to render an account of his transactions and to deliver to the principal whatever he may have received by virtue of the agency, even though it may not be owing to the principal. Every stipulation exempting the agent from the obligation to render an account shall be void. (Art. 1891)

The agent may appoint a substitute if the principal has not prohibited him from doing so; but he shall be responsible for the acts of the substitute:

a) when he was not given the power to appoint one;
b) when he was given such power, but without designating the person, and the person appointed was notoriously incompetent or insolvent.

All acts of the substitute appointed against the prohibition of the principal shall be void. (Art. 1892) Further, the principal may bring an action against the substitute with respect to the obligations which latter has contracted. (Art. 1893)

The responsibility of 2 or more agents, even though they have been appointed simultaneously, is not solidary, if solidarity has not been expressly stipulated. (Art. 1894) If solidarity has been agreed upon, each agent is responsible for the non-fulfillment of agency, and for the fault or negligence of his fellow agent/s, except in the latter case when the fellow agent/s acted beyond the scope of their authority. (Art. 1895) Remember, solidarity means one-for-all-and-all-for-one.

If a duly authorized agent acts in accordance with the orders of the principal, the latter cannot set up the ignorance of the agent as to circumstances whereof he himself was, or ought to have been, aware. (Art. 1899) The agent must always be supervised … you never know …

Commission Agent

An agent on commission shall be responsible for the goods received by him in the terms and conditions and as described in the consignment, unless upon receiving them he should make a written statement of the damage and deterioration suffered by the same. (Art. 1903) So agents, make sure you are not made liable for goods already damaged once you receive them.

The commission agent cannot, without the express or implied consent of the principal, sell on credit. Should he do so, the principal may demand from him payment in cash, but the commission agent shall be entitled to any interest or benefit, which may result from such sale. (Art. 1905) Should the commission agent, with authority of the principal, sell on credit, he shall so inform the principal, with a statement of the names of the buyers. Should he fail to do so, the sale shall be deemed to have been made for cash insofar as the principal is concerned. (Art. 1906)

Should the commission agent receive on a sale, in addition to the ordinary commission, another called a guarantee commission, it means he shall bear the risk of collection and shall pay the principal the proceeds of the sale on the same terms agreed upon with the purchaser. (Art. 1907) Guarantors really are saint, or losers.

Declining the Agency

In case a person declines an agency, he is bound to observe the diligence of a good father of a family in the custody and preservation of the goods forwarded to him by the owner until the latter should appoint an agent or take charge of the goods. (Art. 1885)

Should there be a stipulation that the agent shall advance the necessary funds, he shall be bound to do so except when the principal is insolvent. (Art. 1886)

An agent shall not carry out an agency if its execution would manifestly result in loss or damage to the principal. (Art. 1888)

Notice to Third Persons

A third person with whom the agent wishes to contract on behalf of the principal may require the presentation of the power of attorney, or the instructions as regards the agency. Private or secret orders and instructions of the principal do not prejudice third persons who have relied upon the power of attorney or instructions shown them. (Art. 1902)

A third person cannot set up the fact that the agent has exceeded his powers, if the principal has ratified, or has signified his willingness to ratify the agent's acts. (Art. 1901)

Agent’s Liability

The agent is bound by his acceptance to carry out the agency, and is liable for the damages which, through his non-performance, the principal may suffer. (Art. 1884)

The agent is responsible not only for fraud, but also for negligence, which shall be judged with rigor by the courts, depending on whether or not the agency was for compensation. (Art. 1909)

The agent shall be liable for damages if, there being a conflict between his interests and those of the principal, he should prefer his own. (Art. 1889)

The agent owes interest on the sums he has applied to his own use from the day on which he did so, and on those which he still owes after the extinguishment of the agency. (Art. 1896)

The agent is not personally liable to the party with whom he contracts (the liability is usually on the principal), unless he expressly binds himself or exceeds the limits of his authority without giving such party sufficient notice of his powers. (Art. 1897) If the agent contracts in the name of the principal, exceeding the scope of his authority, and the principal does not ratify the contract, it shall be void if the party with whom the agent contracted is aware of the limits of the powers granted by the principal. In this case, however, the agent is liable if he undertook to secure the principal's ratification. (Art. 1898)

Obligations of the Principal

When there are agents, there are principals and here are their legal obligations:

The principal must comply with all the obligations which the agent may have contracted within the scope of his authority. As for any obligation wherein the agent has exceeded his power, the principal is not bound except when he ratifies it expressly or tacitly. (Art. 1910)

Even when the agent has exceeded his authority, the principal is solidarily liable with the agent if the former allowed the latter to act as though he had full powers. (Art. 1911) So Mr. Principal, once you become aware or maybe even suspicious of your agent’s actions beyond his authority, might be a good time to call everything off.

The principal must advance to the agent, if requested, the sums necessary for the execution of the agency. If the agent advanced them, the principal must reimburse him, even if the business or undertaking was not successful, provided the agent is free from all fault. Reimbursement shall include interest on the sums advanced, from the day on which the advance was made. (Art. 1912) The principal must also indemnify the agent for all damages which the execution of the agency may have caused the latter without his fault or negligence. (Art. 1913) The agent may retain in pledge the things which are the object of the agency until the principal effects such reimbursement and indemnity. (Art. 1914)

If two or more persons have appointed an agent for a common transaction or undertaking, they shall be solidarily liable to the agent for all the consequences of the agency. (Art. 1915)

When 2 persons contract with regard to the same thing, one of them with the agent and the other with the principal, and the two contracts are incompatible with each other, that of prior date shall be preferred, without prejudice to the provisions of Article 1544. (Art. 1916) If the agent acted in good faith, the principal shall be liable in damages to the third person whose contract must be rejected. If the agent acted in bad faith, he alone shall be responsible. (Art. 1917)

The principal is not liable for the expenses incurred by the agent in the following cases:

1) if the agent acted in contravention of the principal's instructions, unless the latter wishes to avail himself of the benefits derived from the contract;
2) when the expenses were due to the agent’s fault;
3) when the agent incurred them with knowledge that an unfavorable result would ensue, if the principal was not aware thereof;
4) when it was stipulated that the expenses would be borne by the agent, or that the latter would be allowed only a certain sum. (Art. 1918)

Extinguishment of Agency

The agency is extinguished:

1) by its revocation;

2) by the agent’s withdrawal;
3) by principal or the agent’s death, civil interdiction, insanity or insolvency;

4) by the dissolution of the firm or corporation which entrusted or accepted the agency;

5) by the accomplishment of the object or purpose of the agency;

6) by the expiration of the period for which the agency was constituted. (Art. 1919)

The principal may revoke the agency at will, and compel the agent to return the document evidencing the agency. Such revocation may be express or implied. (Art. 1920)

The agency is revoked if the principal directly manages the business entrusted to the agent, dealing directly with third persons. (Art. 1924)

A general power of attorney is revoked by a special one granted to another agent, as regards the special matter involved in the latter. (Art. 1926)

When two or more principals have granted a power of attorney for a common transaction, any one of them may revoke the same without the consent of the others. (Art. 1925)

The agent may withdraw from the agency by giving due notice to the principal. If the latter should suffer any damage by reason of the withdrawal, the agent must indemnify him, unless the agent should base his withdrawal upon the impossibility of continuing the performance of the agency without grave detriment to himself. (Art. 1928)

The agent, even if he should withdraw from the agency for a valid reason, must continue to act until the principal has had reasonable opportunity to take the necessary steps to meet the situation. (Art. 1929)

If the agency has been entrusted for the purpose of contracting with specified persons, its revocation shall not prejudice the latter if they were notified thereof. (Art. 1921) If the agent had general powers, revocation of the agency does not prejudice third persons who acted in good faith and without knowledge of the revocation. But, notice of the revocation in a newspaper of general circulation is a sufficient warning to third persons. (Art. 1922) The appointment of a new agent for the same business or transaction revokes the previous agency from the day on which notice thereof was given to the former agent, without prejudice to the third persons acting in good faith and without notice. (Art. 1923)

The agency shall remain in full force and effect even after the principal’s death, if it has been constituted in the common interest of the latter and of the agent, or in the interest of a third person who has accepted the stipulation in his favor. (Art. 1930)

An agency cannot be revoked if a bilateral contract depends upon it, or if it is the means of fulfilling an obligation already contracted, or if a partner is appointed manager of a partnership in the contract of partnership and his removal from the management is unjustifiable. (Art. 1927)

Anything done by the agent, without knowledge of the principal’s death or of any other cause which extinguishes the agency, is valid and shall be fully effective with respect to third persons who may have contracted with him in good faith. (Art. 1931)

If the agent dies, his heirs must notify the principal thereof, and in the meantime adopt such measures as the circumstances may demand in the interest of the latter. (Art. 1932)

Note these are basic legal provisions. You can delegate or stipulate as much as you require or like. But remember, they shouldn’t be against the law. And preferably not as convoluted as a certain movie plot we hear …

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