Republic Act No. 10175 | Cyber Crime Law

Republic of the Philippines

Congress of the Philippines

Metro Manila

Fifteenth Congress

Second Regular Session

Begun and held in Metro Manila, on Monday the Twenty-fifth day of July two thousand eleven.

[ Republic Act No. 10175 ]

AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES


Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

CHAPTER I

PRELIMINARY PROVISIONS

SECTION 1. Title. — This Act shall be known as the “Cybercrime Prevention Act of 2012″.


SEC. 2. Declaration of Policy. — The State recognizes the vital role of information and communications industries such as content production, telecommunications, broadcasting electronic commerce, and data processing, in the nation’s overall social and economic development. The State also recognizes the importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible access to exchange and/or delivery of information; and the need to protect and safeguard the integrity of computer, computer and communications systems, networks, and databases, and the confidentiality, integrity, and availability of information and data stored therein, from all forms of misuse, abuse, and illegal access by making punishable under the law such conduct or conducts. In this light, the State shall adopt sufficient powers to effectively prevent and combat such offenses by facilitating their detection, investigation, and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation.


SEC. 3. Definition of Terms. — For purposes of this Act, the following terms are hereby defined as follows:


(a) Access refers to the instruction, communication with, storing data in, retrieving data from, or otherwise making use of any resources of a computer system or communication network.


(b) Alteration refers to the modification or change, in form or substance, of an existing computer data or program.


(c) Communication refers to the transmission of information through ICT media, including voice, video and other forms of data.


(d) Computer refers to an electronic, magnetic, optical, electrochemical, or other data processing or communications device, or grouping of such devices, capable of performing logical, arithmetic, routing, or storage functions and which includes any storage facility or equipment or communications facility or equipment directly related to or operating in conjunction with such device. It covers any type of computer device including devices with data processing capabilities like mobile phones, smart phones, computer networks and other devices connected to the internet.


(e) Computer data refers to any representation of facts, information, or concepts in a form suitable for processing in a computer system including a program suitable to cause a computer system to perform a function and includes electronic documents and/or electronic data messages whether stored in local computer systems or online.


(f) Computer program refers to a set of instructions executed by the computer to achieve intended results.


(g) Computer system refers to any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media.


(h) Without right refers to either: (i) conduct undertaken without or in excess of authority; or (ii) conduct not covered by established legal defenses, excuses, court orders, justifications, or relevant principles under the law.


(i) Cyber refers to a computer or a computer network, the electronic medium in which online communication takes place.


(j) Critical infrastructure refers to the computer systems, and/or networks, whether physical or virtual, and/or the computer programs, computer data and/or traffic data so vital to this country that the incapacity or destruction of or interference with such system and assets would have a debilitating impact on security, national or economic security, national public health and safety, or any combination of those matters.


(k) Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best practices, assurance and technologies that can be used to protect the cyber environment and organization and user’s assets.


(l) Database refers to a representation of information, knowledge, facts, concepts, or instructions which are being prepared, processed or stored or have been prepared, processed or stored in a formalized manner and which are intended for use in a computer system.


(m) Interception refers to listening to, recording, monitoring or surveillance of the content of communications, including procuring of the content of data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring.


(n) Service provider refers to:


(1) Any public or private entity that provides to users of its service the ability to communicate by means of a computer system; and


(2) Any other entity that processes or stores computer data on behalf of such communication service or users of such service.


(o) Subscriber’s information refers to any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services other than traffic or content data and by which identity can be established:


(1) The type of communication service used, the technical provisions taken thereto and the period of service;


(2) The subscriber’s identity, postal or geographic address, telephone and other access numbers, any assigned network address, billing and payment information, available on the basis of the service agreement or arrangement; and


(3) Any other available information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement.


(p) Traffic data or non-content data refers to any computer data other than the content of the communication including, but not limited to, the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.

CHAPTER II

PUNISHABLE ACTS

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:


(a) Offenses against the confidentiality, integrity and availability of computer data and systems:


(1) Illegal Access. – The access to the whole or any part of a computer system without right.


(2) Illegal Interception. – The interception made by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data.


(3) Data Interference. — The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.


(4) System Interference. — The intentional alteration or reckless hindering or interference with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or electronic data message, without right or authority, including the introduction or transmission of viruses.


(5) Misuse of Devices.


(i) The use, production, sale, procurement, importation, distribution, or otherwise making available, without right, of:


(aa) A device, including a computer program, designed or adapted primarily for the purpose of committing any of the offenses under this Act; or


(bb) A computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed with intent that it be used for the purpose of committing any of the offenses under this Act.


(ii) The possession of an item referred to in paragraphs 5(i)(aa) or (bb) above with intent to use said devices for the purpose of committing any of the offenses under this section.


(6) Cyber-squatting. – The acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is:


(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration:


(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and


(iii) Acquired without right or with intellectual property interests in it.


(b) Computer-related Offenses:


(1) Computer-related Forgery. —


(i) The input, alteration, or deletion of any computer data without right resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible; or


(ii) The act of knowingly using computer data which is the product of computer-related forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest design.


(2) Computer-related Fraud. — The unauthorized input, alteration, or deletion of computer data or program or interference in the functioning of a computer system, causing damage thereby with fraudulent intent: Provided,That if no


damage has yet been caused, the penalty imposable shall be one (1) degree lower.


(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical, without right: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.


(c) Content-related Offenses:


(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.


(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.


(3) Unsolicited Commercial Communications. — The transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services are prohibited unless:


(i) There is prior affirmative consent from the recipient; or


(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or


(iii) The following conditions are present:


(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject. receipt of further commercial electronic messages (opt-out) from the same source;


(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and


(cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients to read the message.


(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.


SEC. 5. Other Offenses. — The following acts shall also constitute an offense:


(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable.


(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable.


SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.


SEC. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

CHAPTER III

PENALTIES

SEC. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) up to a maximum amount commensurate to the damage incurred or both.


Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.


If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a fine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount commensurate to the damage incurred or both, shall be imposed.


Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.


Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with the penalties as enumerated in Republic Act No. 9775 or the “Anti-Child Pornography Act of 2009″: Provided,That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if committed through a computer system.


Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty thousand pesos (PhP250,000.00) or both.


Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or both.


SEC. 9. Corporate Liability. — When any of the punishable acts herein defined are knowingly committed on behalf of or for the benefit of a juridical person, by a natural person acting either individually or as part of an organ of the juridical person, who has a leading position within, based on: (a) a power of representation of the juridical person provided the act committed falls within the scope of such authority; (b) an authority to take decisions on behalf of the juridical person: Provided, That the act committed falls within the scope of such authority; or (c) an authority to exercise control within the juridical person, the juridical person shall be held liable for a fine equivalent to at least double the fines imposable in Section 7 up to a maximum of Ten million pesos (PhP10,000,000.00).


If the commission of any of the punishable acts herein defined was made possible due to the lack of supervision or control by a natural person referred to and described in the preceding paragraph, for the benefit of that juridical person by a natural person acting under its authority, the juridical person shall be held liable for a fine equivalent to at least double the fines imposable in Section 7 up to a maximum of Five million pesos (PhP5,000,000.00).


The liability imposed on the juridical person shall be without prejudice to the criminal liability of the natural person who has committed the offense.

CHAPTER IV

ENFORCEMENT AND IMPLEMENTATION

SEC. 10. Law Enforcement Authorities. — The National Bureau of Investigation (NBI) and the Philippine National Police (PNP) shall be responsible for the efficient and effective law enforcement of the provisions of this Act. The NBI and the PNP shall organize a cybercrime unit or center manned by special investigators to exclusively handle cases involving violations of this Act.


SEC. 11. Duties of Law Enforcement Authorities. — To ensure that the technical nature of cybercrime and its prevention is given focus and considering the procedures involved for international cooperation, law enforcement authorities specifically the computer or technology crime divisions or units responsible for the investigation of cybercrimes are required to submit timely and regular reports including pre-operation, post-operation and investigation results and such other documents as may be required to the Department of Justice (DOJ) for review and monitoring.


SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.


Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.


All other data to be collected or seized or disclosed will require a court warrant.


Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.


The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.


SEC. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to communication services provided by a service provider shall be preserved for a minimum period of six (6) months from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation.


Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case.


The service provider ordered to preserve computer data shall keep confidential the order and its compliance.


SEC. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation.


SEC. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties.


Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:


(a) To secure a computer system or a computer data storage medium;


(b) To make and retain a copy of those computer data secured;


(c) To maintain the integrity of the relevant stored computer data;


(d) To conduct forensic analysis or examination of the computer data storage medium; and


(e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network.


Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.


Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court.


SEC. 16. Custody of Computer Data. — All computer data, including content and traffic data, examined under a proper warrant shall, within forty-eight (48) hours after the expiration of the period fixed therein, be deposited with the court in a sealed package, and shall be accompanied by an affidavit of the law enforcement authority executing it stating the dates and times covered by the examination, and the law enforcement authority who may access the deposit, among other relevant data. The law enforcement authority shall also certify that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the package deposited with the court. The package so deposited shall not be opened, or the recordings replayed, or used in evidence, or then contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded.


SEC. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer data subject of a preservation and examination.


SEC. 18. Exclusionary Rule. — Any evidence procured without a valid warrant or beyond the authority of the same shall be inadmissible for any proceeding before any court or tribunal.


SEC. 19. Restricting or Blocking Access to Computer Data. — When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.


SEC. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement authorities.

CHAPTER V

JURISDICTION

SEC. 21. Jurisdiction. — The Regional Trial Court shall have jurisdiction over any violation of the provisions of this Act. including any violation committed by a Filipino national regardless of the place of commission. Jurisdiction shall lie if any of the elements was committed within the Philippines or committed with the use of any computer system wholly or partly situated in the country, or when by such commission any damage is caused to a natural or juridical person who, at the time the offense was committed, was in the Philippines.


There shall be designated special cybercrime courts manned by specially trained judges to handle cybercrime cases.

CHAPTER VI

INTERNATIONAL COOPERATION

Sec. 22. General Principles Relating to International Cooperation — All relevant international instruments on international cooperation in criminal matters, arrangements agreed on the basis of uniform or reciprocal legislation, and domestic laws, to the widest extent possible for the purposes of investigations or proceedings concerning criminal offenses related to computer systems and data, or for the collection of evidence in electronic form of a criminal, offense shall be given full force and effect.

CHAPTER VII

COMPETENT AUTHORITIES

SEC 23. Department of Justice (DOJ). — There is hereby created an Office of Cybercrime within the DOJ designated as the central authority in all matters related to international mutual assistance and extradition.


SEC. 24. Cybercrime Investigation and Coordinating Center. — There is hereby created, within thirty (30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for policy coordination among concerned agencies and for the formulation and enforcement of the national cybersecurity plan.


SEC. 25. Composition. — The CICC shall be headed by the Executive Director of the Information and Communications Technology Office under the Department of Science and Technology (ICTO-DOST) as Chairperson with the Director of the NBI as Vice Chairperson; the Chief of the PNP; Head of the DOJ Office of Cybercrime; and one (1) representative from the private sector and academe, as members. The CICC shall be manned by a secretariat of selected existing personnel and representatives from the different participating agencies.


SEC. 26. Powers and Functions. — The CICC shall have the following powers and functions:


(a) To formulate a national cybersecurity plan and extend immediate assistance for the suppression of real-time commission of cybercrime offenses through a computer emergency response team (CERT);


(b) To coordinate the preparation of appropriate and effective measures to prevent and suppress cybercrime activities as provided for in this Act;


(c) To monitor cybercrime cases being bandied by participating law enforcement and prosecution agencies;


(d) To facilitate international cooperation on intelligence, investigations, training and capacity building related to cybercrime prevention, suppression and prosecution;


(e) To coordinate the support and participation of the business sector, local government units and nongovernment organizations in cybercrime prevention programs and other


related projects;


(f) To recommend the enactment of appropriate laws, issuances, measures and policies;


(g) To call upon any government agency to render assistance in the accomplishment of the CICC’s mandated tasks and functions; and


(h) To perform all other matters related to cybercrime prevention and suppression, including capacity building and such other functions and duties as may be necessary for the proper implementation of this Act.

CHAPTER VIII

FINAL PROVISIONS

SEC. 27. Appropriations. — The amount of Fifty million pesos (PhP50,000,000.00) shall be appropriated annually for the implementation of this Act.


SEC. 28. Implementing Rules and Regulations. — The ICTO-DOST, the DOJ and the Department of the Interior and Local Government (DILG) shall jointly formulate the necessary rules and regulations within ninety (90) days from approval of this Act, for its effective implementation.


SEC. 29. Separability Clause — If any provision of this Act is held invalid, the other provisions not affected shall remain in full force and effect.


SEC. 30. Repealing Clause. — All laws, decrees or rules inconsistent with this Act are hereby repealed or modified accordingly. Section 33(a) of Republic Act No. 8792 or the “Electronic Commerce Act” is hereby modified accordingly.


SEC. 31. Effectivity. — This Act shall take effect fifteen (15) days after the completion of its publication in theOfficial Gazette or in at least two (2) newspapers of general circulation.


Approved,





(Sgd.) FELICIANO BELMONTE JR.

Speaker of the House
of Representatives


(Sgd.) JUAN PONCE ENRILEPresident of the Senate



This Act which is a consolidation of Senate Bill No. 2796 and House Bill No. 5808 was finally passed by the Senate and the House of Representatives on June 5, 2012 and June 4, 2012, respectively.





(Sgd.) MARILYN B. BARUA-YAP

Secretary General
House of Representatives


(Sgd.) EMMA LIRIO-REYES

Secretary of the Senate







Approved: SEP 12 2012


(Sgd.) BENIGNO S. AQUINO III

President of the Philippines






http://www.gov.ph/2012/09/12/republic-act-no-10175/

WHAT ARE THE MINIMUM CONDITIONS OF OVERSEAS EMPLOYMENT?

Minimum conditions of Overseas Employment
WHAT ARE THE MINIMUM CONDITIONS

OF OVERSEAS EMPLOYMENT?
Overseas Employment for Filipinos

Overseas employment for most Filipinos is both a lucrative and risky enterprise. With the proliferation of midnight recruitment agencies that offer false employment which often lead to less than humane conditions of work, the Philippine government has created the Philippine Overseas Employment Administration and its predecessor agencies in order to safeguard and ensure the welfare and well-being of Filipino migrant workers. The said agency is tasked with the duty of establishing a watchlist and a system for blacklisting errant recruitment and employment entities.

In fulfilling its mandate, the POEA has already set several guidelines regarding overseas employment. Among these is the rule regarding the minimum conditions of overseas employment. The POEA has required every overseas employment contract to stipulate the following conditions of employment:
The contract must have a provision guaranteeing wages for regular working hours and overtime pay for services rendered beyond regular working hours;
Free transportation from point of hire to the site of employment and return;
Free emergency medical and dental treatment facilities;
Just cause for termination of the contract or services of the employee;
Workmen’s compensation benefit;
Repatriation of worker’s remains and properties in case of his or her death;
Assistance on remittance of salaries, allowances or allotments to the beneficiaries; and
Free and adequate board and lodging facilities or compensatory food allowance at the prevailing cost of living standards at the job site.

WHAT IS OVERTIME PAY?

Philippine Concept Of Overtime Pay



WHAT IS OVERTIME PAY?
Definition of Overtime Pay

Overtime pay may be defined as an additional compensation awarded to an employee for work done in excess of eight hours. Every employee permitted or required to perform work beyond eight (8) hours a day shall be entitled to overtime pay. This additional compensation shall amount to the employee’s regular pay excluding bonuses and fringe benefits plus at least 25% thereof. In case an employee is permitted or forced to work on a holiday or rest day, his or her overtime pay shall amount to his or her regular basic salary plus 30% thereof.

The payment of overtime pay is, as a general rule, cannot be the subject of a waiver. It is a benefit granted to an individual by law and thus cannot be ordinarily subject to an agreement between the parties. Overtime pay may only be waived in certain instances such as when a compressed work week schedule has been implemented provided that the following requisites are present:
The waiver is voluntary on the part of the employee;
There is no diminution of the weekly or monthly take-home pay and fringe benefits of the employees;
The value of the benefits that will accrue in favor of the employees shall be commensurate with the overtime pay due to them under any proposed schedule;
That the overtime pay shall be due and demandable if the employees are permitted to work on a day not scheduled for work even when a compressed work week schedule is implemented;
The work does not involve strenuous physical exertion and there must be adequate rest periods;
Such arrangement is temporary in nature.

Most employment contracts today includes built in overtime provisions that guarantee the right of employees to overtime pay. In these instances, only upon submission of sufficient proof of services rendered beyond eight (8) hours shall the employee be entitled to compensation for his overtime pay.

WHAT ARE THE PROHIBITIONS OF THE LABOR CODE REGARDING WAGES IN THE PHILIPPINES?

Philippine Labor Code Prohibitions Regarding Wages



WHAT ARE THE PROHIBITIONS OF THE LABOR CODE

REGARDING WAGES IN THE PHILIPPINES?

Wages earned by an employee are given special protection under the Labor Code of the Philippines in recognition of its importance in the continued survival of both the employee and his or her family. In a country where majority of its citizens live in what can only be considered as “hand-to-mouth” existence, the Philippine Legislature has deemed it necessary to provide employees who earn barely enough adequate protection, by ensuring that their wages shall be received in full and free from any prohibited deductions.

The Labor Code begins by prohibiting an employer from limiting or otherwise interfering with the freedom of any employee to dispose of his wages. The employer shall not in any manner force, compel, or oblige his employees to purchase merchandise, commodities or other property from any other person; or otherwise make use of any store or services of such employer or any other person. In fact, criminal liability may ensue since this act of the employer is punished under the Revised Penal Code.

Moreover, an employer is proscribed from making any deduction from the wages of his or her employees. He or she may only make deductions in cases where the worker is insured and the deduction made is to recompense the employer for the amount paid by him as premium on the insurance; or for union dues; or where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; or where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment. This prohibition on deduction extends to the practice of making any deduction from the wages of an employee for the benefit of the employer or his representative as consideration of a promise of employment or retention in employment.

An employer is also prohibited from requiring his or her worker to make deposits from which deductions shall be made for the reimbursement of losses or damages to tools, materials, or equipment supplied by the employer, except when the employer is engaged in such trades, occupations or businesses where said practice is a recognized one; or is necessary or desirable as determined by the Secretary of Labor and Employment in appropriate rules and regulations. In such situations, the employee must first be accorded the right to be heard and his or her responsibility for the damage has been clearly shown before any deduction shall take effect.

It shall also be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker; or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the worker’s consent. This prohibition applies not only to the employer but also against other persons.

Lastly, it shall be unlawful for an employer to refuse to pay or reduce the wages and benefits; discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding or has testified or is about to testify in proceedings concerning violations of the prohibitions on wages.

WHAT ARE THE RULES ON CHILD CUSTODY?

Child Custody

WHAT ARE THE RULES ON CHILD CUSTODY?

Child custody is intertwined with the concept of parental authority as the former is an integral aspect of the latter. Having custody over a child allows parents to exercise parental authority since the proximity between these two rights facilitates control and guidance. With this in mind, it can be clearly seen that custody is an issue that is treated with paramount importance in the realm of family law.

As a default rule, the provisions of the Civil Code provide for the joint exercise of parental authority by the parents over the child. For illegitimate children, the rule remains that parental authority and custody shall remain with the mother. In cases involving the separation of the parents either by annulment; legal separation; or the declaration of nullity of a marriage and in the absence of any written agreement between the spouses assigning custody over the children, the court shall provide for the custody of the common children giving paramount consideration to their moral and material welfare and their choice of the parent with whom they wish to remain.

Under the rules governing provisional orders, the following factors may be considered by the court in determining the provisional custody of the children: (a) the agreement of the parties; (b) the desire and ability of each parent to foster an open and loving relationship between the child and the other parent; (c) the child’s health, safety, and welfare; (d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent; (e) the nature and frequency of contact with both parents; (f) habitual use of alcohol or regulated substances; (g) marital misconduct; (h) the most suitable physical, emotional, spiritual, psychological and educational environment; and (i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit.

Furthermore, the court may award provisional custody in the following order of preference: (1) to both parents jointly; (2) to either parent taking into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit; (3) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified; (4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; (5) to the child’s actual custodian over twenty-one years of age, unless unfit or disqualified; or (6) to any other person deemed by the court suitable to provide proper care and guidance for the child.

The court shall also provide for appropriate visitation rights of the other parent. In the case of children below the age of 7 years, the law prohibits them from being separated from the mother unless the court finds compelling reasons to order otherwise. This rule is rooted in the recognition of the tremendous pain and trauma that a child and his or her mother undergo when they are forced to separate.

After litigation, the court shall make an order declaring to whom custody of the children shall be awarded. The court shall take into consideration the fitness of each parent before granting custody.

Instances exist that transcend the ordinary rules of custody. These contemplate situations calling for the exercise of special parental authority in cases where both parents are in default or when a guardian is appointed by the court. In such cases, the surviving grandparent, oldest brother or sister or the child’s actual custodian are granted custody in this order. For foundlings, abandoned or abused children, the orphanages and other institutions shall exercise parental authority and custody.

WHAT IS SPOUSAL SUPPORT UNDER THE PHILIPPINE FAMILY CODE?

Spousal Support

WHAT IS SPOUSAL SUPPORT UNDER THE PHILIPPINE FAMILY CODE?


Philippine law has defined support as everything indispensible in keeping with the financial capacity of a family. It may consist of food or sustenance, dwelling or shelter, clothing, medical attendance, education and transportation. Under Philippine law, support plays a very important role in ensuring the survival of the family unit. As such, the law has taken great pains in protecting it by making it exempt from levy or execution. The law also prohibits the renunciation of support in favor of a third person. Neither is support a valid subject of compromise nor can it be set up for compensation against an existing creditor.

The obligation to provide spousal support derives itself from article 68 of the Family Code elucidating the various rights and obligations of the spouses during the existence of their marriage. Under the said provision, both spouses are required to render mutual help and support to each other. As a rule, the spouses are jointly responsible for the support of the family. Article 70 of the Family Code further prescribes the order from which support shall be paid. According to the provision, the expenses for support shall be paid first from the community property and in the absence thereof, from the income or fruits of the separate properties. In case of insufficiency or absence of said income or fruits, support shall be taken from their separate properties.

The obligation to provide for support may be satisfied either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support unless there is a moral or legal obstacle thereto. The obligation to give support shall be demandable from the time the recipient needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand.

Pending litigation, support may be claimed in accordance with the provisions of the Rules of Court on Support pendente lite. Rule 61 of the Rules of Court provides for the proper application and procedure for such a petition. Under the said rule, the court hearing the case may, upon proper petition and hearing grant and provisionally fix the amount of money to be paid or to provide for the other forms of support taking into consideration the resources of the adverse party. Furthermore, as provided for under the Rule on Provisional Orders covering actions for annulments, declaration of nullity of marriages and actions for legal separation, the court issuing the order for provisional support may be guided by the following factors: (1) whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment; (2) the time necessary to acquire sufficient education and training to enable the spouse seeking support to find appropriate employment, and that spouse’s future earning capacity; (3) the duration of the marriage; (4) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; (5) the needs and obligations of each spouse; (6) the contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career building of the other spouse; (7) the age and health of the spouses; (8) the physical and emotional conditions of the spouses; (9) the ability of the supporting spouse to give support, taking into account that spouse’s earning capacity, earned and unearned income, assets, and standard of living; and (10) any other factors the court may deem just and equitable. This however, should not be confused with a separate action for support. An action for support pendente lite requires an existing case where the issue of support is but an incident of the main proceeding. An action for support is an independent proceeding wherein the grant of support is the main relief sought.

Spousal support may be denied for reasons such as the following: a) the person from whom support is sought is not legally required to provide it; b) when the claimant spouse is the guilty spouse; or c) when the other spouse provided the cause for legal separation

WHAT ARE THE MARRIAGES WITHOUT LEGAL EFFECTS IN THE PHILIPPINES?

Philippine Marriages

WHAT ARE THE MARRIAGES WITHOUT LEGAL EFFECTS IN THE PHILIPPINES?


Void marriages are marriages that do not have any legal effect from their celebration and therefore cannot be used as the basis for rights and responsibilities under the law. Being void from the very beginning, such marriages are not susceptible to ratification by either party. Furthermore, marriages of such character may be impugned either in a direct or indirect proceeding during or even after the death of the parties. Under Article 35 of the Family Code of the Philippines, the following marriages shall be null and void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

(3) Those solemnized without license, except those covered the preceding Chapter;

(4) Those bigamous or polygamous marriages not failing under Article 41;

(5) Those contracted through mistake of one contracting party as to the identity of the other; and

(6) Those subsequent marriages that are void under Article 53.

The list is not exclusive since there are other articles that also provide for other kinds of void marriages. These provisions are found in articles 36, 37, 38 and 53 of the same code. Article 36 deals with marriages that have been celebrated where either of the parties was suffering from psychological incapacity. Under this article, such a marriage may be subsequently declared null and void. Psychological incapacity has been defined as a mental incapacity that causes a party to be truly incognitive of basic marital covenants that must be assumed and discharged by the parties. Despite this definition, courts are still given wide latitude in defining instances that also fall within the term psychological incapacity as it was the intent of the lawmakers to give judges such discretion. Circumstances that show the presence of psychological incapacity include the constant refusal to procreate with his or her spouse; refusal to dwell in the same house and consequently leaving the other spouse without any justification; unbearable jealousy of either parties; and immaturity or lack of rational judgment.

Article 37 deals with incestuous marriages. These marriages are declared null and void based on gathered scientific evidence where marriage between relatives of a certain degree may produce offsprings that are both genetically inferior and defective. In order to prevent such situations, the law prohibits these persons from marrying each other. Article 37 provides as follows:

Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half blood.

Article 38 deals with marriages contrary to public policy. Under this provision, the following individuals are prohibited from marrying each other due to the artificial relationship that both the law and society recognizes. In such cases, the law treats such individuals as being related despite their lack of blood relation. Article 38 lists these marriages as follows:

(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;

(2) Between step-parents and step-children;

(3) Between parents-in-law and children-in-law;

(4) Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted child;

(6) Between the surviving spouse of the adopted child and the adopter;

(7) Between an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse.

Article 53 deals with subsequent marriages entered into by either party without fulfilling the requirements laid down by law. The provision contemplates a previous marriage that was annulled or declared void. The former spouses are free to remarry provided they have fulfilled the requirement of recording the judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children’s presumptive legitimes in the appropriate civil registry and registries of property. Failure to do so would result in making any subsequent marriage null and void.