No exemptions allowed in new wage order

BAGUIO CITY  – The newly approved implementing rules and regulations of Wage Order No. RB-CAR-18 does not allow applications for exemptions from compliance with the order, except in cases of establishments adversely affected by calamities such as natural or human inducted disasters pursuant to National Wages Productivity Commission (NWPC) Resolution No. 1, series of 2014.

The criteria provided by the implementing rules and regulations to determine if the applicant-establishment adversely affected by calamities qualifies for the exemption includes the fact that the establishment must be located in an area declared by a competent authority as under a state of calamity, the calamity must have occurred within 6 months prior to the effectivity of the wage order, however, if based on the assessment by a competent authority, the damage to properties is 50 percent and the period of recovery will exceed one year, the 6-month period may be extended to 1 year, losses suffered by the establishment as a result of the calamity that exceed the insurance coverage shall amount to 20 percent or more of the stockholders’ equity as of the last full accounting period in the case of corporations and cooperatives, total invested capital in the case of partnerships and single proprietorships and fund balance and members contributions in the case of non-stock and non-profit organizations and only losses and damage to properties directly resulting from the calamity and not incurred as a result of normal business operations shall be considered and where necessary, the board or its duly authorized representative shall conduct an ocular inspection of the establishment or engage the services of experts to validate the extent of damages suffered.

Further, applications for exemption from the coverage of the new wage order shall include proof of notice of filing of the application to the president of the union or contracting party if one of organized in  the establishment or if there is no union, a copy of a circular giving general notice of the filing of the application to all the workers in the establishment and the proof of notice, which may be translated into the vernacular, shall state that the workers’ representative was furnished a copy of the application with all the supporting documents and the notice shall be posted in a conspicuous place in the establishment; affidavit from the owner or manager or duly authorized representative of the establishment regarding the date and type of calamity, amount of losses or damages suffered as a direct result of the calamity, list of properties damaged or lost together with estimated valuation and for properties that are not insured, a statement that the same are not covered by insurance; copies of insurance policy contracts covering the properties damaged, if any; adjuster’s report for insured properties; audited financial statement for the last full accounting period preceding the effectivity of the order stamped received by the appropriate government agency and in case of severe damage to properties caused by the calamity, a certification by the barangay and pictures of the damaged properties may be submitted in lieu of the audited financial statement and applicant’s certification that a general assembly to explain to exits employees its intent to file an application for exemption has been conducted prior to the filing of the application and an undertaking to conduct another general assembly informing its employees of the decision of the board on its application and that the board may require the submission of other pertinent documents to support the application for exemption.

An application in 3 legible copies may be filed with the board by the owner or manager or duly authorized representative of an establishment, in person or by registered mail and the date of mailing shall be deemed as the date of filing and applications for exemption with the regional, district or provincial offices of the labor department are considered filed with the appropriate board in the region.

The board may accept applications for exemption on the basis of the effects of the occurrence of the calamity provided that the applicants shall comply with the documentary requirements provided under the rules.

On the other hand, any worker or, if unionized, the union and the applicant establishment, may file with the appropriate board within 15 days from receipt of the notice of filing of the application, an opposition to the application for exemption stating the reasons why the same should not be approved, furnishing the applicant a copy and the opposition shall be in 3 legible copies under oath and accompanied by pertinent documents, if any.

For filing of motion for reconsideration, the aggrieved party may file with the board a motion for reconsideration of the decision on the application for exemption within 10 days from its receipt and shall state the particular grounds upon which the motion is based, copy furnished the other party and the labor department and no second motion for reconsideration shall be entertained in any case and that the decision of the board shall be final and executory unless appealed to the NWPC.

Any party aggrieved by the board may file an appeal to the Commission, through the board, in 2 legible copies, not later than 10 days from the date of the receipt of the decision and the appeal, with proof of service to the other party, shall be accompanied by a memorandum of appeal which shall state the date appellant received the decision, the grounds relied upon and the arguments in support to the appeal.

An appeal may be filed based on the non-conformity with the prescribed guidelines or procedures on exemption; prima facie evidence of grave abuse of discretion on the part of the board, questions of law and the appellee may file with the board its reply or position to the appeal within 10 days from receipt of the appeal and failure of the appellee to file his reply or opposition shall be construed as waiver on his part to file the same.

Within 5 days of receipt of the reply or opposition of the appellee or after the expiration of the period to file the same, the entire records of the case, which shall be consecutively numbered, shall be transmitted by the Board to the Commission.

By HENT

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