Labor Code: Book II — Human Resources Development; Title II — Training and Employment of Special Workers; Chapter III — Handicapped Workers (September 12, 2023)

 

 Book II — Human Resources Development

Title II — Training and Employment of Special Workers 

Chapter III — Handicapped Workers

Q: How does the law protect handicapped workers?

Art. 78. Definition. 

Handicapped workers are those whose earning capacity is impaired by age or physical or mental deficiency or injury.

1. Age or
2. Physical or mental deficiency or injury

Art. 79. When employable. 

Handicapped workers may be employed when their employment is necessary to prevent curtailment of employment opportunities and when it does not create unfair competition in labor costs or impair or lower working standards.

1. necessary to prevent curtailment of employment opportunities and
2. does not create unfair competition in labor costs or
3. impair or lower working standards

Art. 80. Employment agreement. 

Any employer who employs handicapped workers shall enter into an employment agreement with them, which agreement shall include:

1. The names and addresses of the handicapped workers to be employed;
2. The rate to be paid the handicapped workers which shall not be less than seventy five (75%) percent of the applicable legal minimum wage;
3. The duration of employment period; and
4. The work to be performed by handicapped workers.
5. The employment agreement shall be subject to inspection by the Secretary of Labor or his duly authorized representative.

Art. 81. Eligibility for apprenticeship.

Subject to the appropriate provisions of this Code, handicapped workers may be hired as apprentices or learners if their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired.

Notes:

• The "Magna Carta for disabled Persons" (R.A. No. 7277 approved on March 24, 1992) ensures equal opportunities for disabled persons and prohibits discrimination against them.
• Fundamentally, it provides that no disabled person shall be denied access to opportunities for suitable employment. 
• A qualified disabled employee shall be subject to the same terms and conditions employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as qualified able-bodied person.
• The law provides incentives for employment of disabled persons.
• Even a handicapped worker can acquire the status of regular employee.

Bernardo v. NLRC and Far Eastern Bank

• The complainants were 43 deaf-mutes who were hired by Far East Bank and Trust Co. from 1988 to 1993.
• They were employed through "Employment Contract for Handicapped Workers."
• The contract aimed to provide disabled persons with gainful employment and opportunities.
• The complainants worked as Money Sorters and Counters Duties included sorting, counting, wrapping, and labeling bills
• Their contracts were renewed every six months
• Over several years, a total of 56 deaf-mutes were employed under similar contracts.

WoN the employees should be considered regular employees due to the nature and duration of their work. YES.

The task of counting and sorting bills is necessary and desirable to the business of respondent bank. With the exception of sixteen of them, petitioners performed these tasks for more than six months. When the bank renewed the contract after the lapse of the six-month probationary period, the employees thereby became regular employees. No employer is allowed to determine indefinitely the fitness of its employees.

As regular employees, the twenty-seven petitioners are entitled to security of tenure; that is, their services may be terminated only for a just or authorized cause. Because respondent failed to show such cause, these twenty-seven petitioners are deemed illegally dismissed and therefore entitled to back wages and reinstatement without loss of seniority rights and other privileges. 

A contract of employment is impressed with public interest. Provisions of applicable statutes are deemed written into the contract, and the "parties are not at liberty to insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting with each other." Clearly, the agreement of the parties regarding the period of employment cannot prevail over the provisions of the Magna Carta for Disabled Persons, which mandate that petitioners must be treated as qualified able-bodied employees.

The Court believes, that, after showing their fitness for the work assigned to them, they should be treated and granted the same rights like any other regular employees.

Definition of Important Terms Under the Law on PWDs

Disabled persons

are those suffering from restriction or different abilities, 

as a result of a mental, physical or sensory impairment, 

to perform an activity in the manner or 

within the range considered normal for a human being; 

Impairment 

is any loss, diminution or aberration 

of psychological, physiological, or anatomical 

structure or function;

Disability 

shall mean 

1) a physical or mental impairment 

that substantially limits one or more 

psychological, physiological or anatomical function 

of an individual 

or activities of such individual; 

2) a record of such an impairment; or 

3) being regarded as having such an impairment.

Handicap 

refers to a disadvantage for a given individual, 

resulting from an impairment or a disability, 

that limits or prevents 

the function or activity, 

that is considered normal 

given the age and sex of the individual;

Marginalized Disabled Persons 

refer to disabled persons 

who lack access to rehabilitative services and opportunities 

to be able to participate fully in socioeconomic activities 

and who have no means of livelihood 

and whose incomes fall below the poverty threshold;

Equal Opportunity for Employment; Non-Discrimination

• Under R.A. No. 7277, PWDs are entitled to equal opportunity for employment. 
• A qualified employee with disability shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as qualified able-bodied person.
• No entity, whether public or private, shall discriminate against a qualified disabled person by reason of disability in regard to job application procedures, the hiring, promotion, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 

The following constitute acts of discrimination:
LQAC-FTTEE

• (a) Limiting, segregating or classifying a disabled job applicant in such a manner that adversely affects his work opportunities; 
• (b) Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out a disabled person unless such standards, tests or other selection criteria are shown to be job-related for the position in question and are consistent with business necessity; 
• (c) Utilizing standards, criteria, or methods of administration that: 
• (1) have the effect of discrimination on the basis of disability; or 
• (2) perpetuate the discrimination of others who are subject to common administrative control. 
• (d) Providing less compensation, such as salary, wage or other forms of remuneration and fringe benefits, to a qualified disabled employee, by reason of his disability, than the amount to which a non-disabled person performing the same work is entitled; 
• (e) Favoring a non-disabled employee over a qualified disabled employee with respect to promotion, training opportunities, study and scholarship grants, solely on account of the latter's disability; 
• (f) Re-assigning or transferring a disabled employee to a job or position he cannot perform by reason of his disability; 
• (g) Dismissing or terminating the services of a disabled employee by reason of his disability unless the employer can prove that he impairs the satisfactory performance of the work involved to the prejudice of the business entity: Provided, however, That the employer first sought to provide reasonable accommodations for disabled persons; 
• (h) Failing to select or administer in the most effective manner employment tests which accurately reflect the skills, aptitude or other factor of the disabled applicant or employee that such tests purports to measure, rather than the impaired sensory, manual or speaking skills of such applicant or employee, if any; and 
• (i) Excluding disabled persons from membership in labor unions or similar organizations.

Wage Rate

• Under Article 80 of the Labor Code, handicapped workers are entitled to not less than 75% of the applicable adjusted minimum wage.
• In view of R.A. No. 7277, the wage rate of PWDs is 100% of the applicable minimum wage. 
• Wage orders issued by the Regional Tripartite Wages and Productivity Board (RTWPBs) normally reflect this principle.
• To cite an example, Sec. 7 of Wage Order No. NCR-20, which was approved on May 17, 2016 by the TWPB-National Capital Region, states: 
• "All qualified handicapped workers shall receive the full amount of the minimum wage rate prescribed herein pursuant to Republic Act No. 7277, otherwise known as the "Magna Carta for Disabled Persons."
• Moreover, in cases of legally mandated wage increases enunciated in wage orders issued by the RTWPBs, the employment agreements with persons with disability are deemed automatically modified insofar as their wage clauses are concerned to reflect the said increase.

Wage Rate as Apprentice or Learner

• Subject to the provisions of the Labor Code, as amended, PWDs shall be eligible as apprentices or learners; 
• provided that their handicap is not much as to effectively impede the performance of job operations in the particular occupation for which they are hired, and
• provided further that after the lapse of the period of apprenticeship, if found satisfactory in the job performance, they shall be eligible for employment.
• A PWD hired as an apprentice or learner shall be paid not less than 75% of the applicable minimum wage.
• If the PWD, however, is hired as a learner and employed in piece or incentive-jobs during training the period, he shall be paid 100% of the applicable minimum wage.