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The Speakeasy That Wasn’t

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In true Prohibition-Era fashion, the second MFBR Lex Speakeasy most certainly did not take place at the end of last month. No clients and friends partook of an impressive list of single-malt and blended whiskies; nor did they enjoy tasty canapés expertly prepared by that good friend of the firm, Ms. Ingrid Connon.

Likewise, it goes without saying that no feverish game of poker (just for fun) occupied the tightly-packed inhabitants of our conference room. And if the talented JR duo sang hits both old and new to the delight of everyone not present, it was surely not in our offices.

That is why you will see no report of such goings on in social media. Not a jot. No pictures of one particular client, diligently working his way down the entire drinks menu while his business partner opined that it was the best party he had been to in his life. No Captain Of Industry happily ruining exquisite songs in various languages.

And no trainee barman who insisted on plonking slices of lemon and a dash of Coca Cola in everything from chocolate liqueur to red wine.

No sir. Never happened. And anyone who says it did will not be invited to the next one. Oops! 😉

 

MFBR Opens Speakeasy!

MFBR’s First Lex Speakeasy Gets Off to a Roaring Start!

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Saliha Naila Abdullah Takes A Look At The 105-Day Expanded Maternity Leave Law

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Saliha Naila Abdullah Takes A Look At The 105-Day Expanded Maternity Leave Law

By Saliha Naila ABdullah

 

As part of the mandate of the Constitution “to protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare,” the State has promulgated several laws.

One of these relates to Maternity leave.

So, what does “Maternity leave” mean? The term refers to the period of time that can be availed of by any female employee, married or unmarried, to undergo and recuperate from childbirth, miscarriage or complete abortion, during which she is permitted to retain her rights and benefits under her employment (i.e., status of employment, salary, 13th month pay)

Under the old law of Maternity leave benefit, the period of leave given to women is determined by the type of childbirth. Thus, a period of sixty (60) days was provided for every normal delivery. On the other hand, seventy-eight (78) days was provided for caesarian delivery. However, last 20 February, 2019, President Rodrigo Duterte signed into law Republic Act No. 11210, otherwise known as the 105-Day Expanded Maternity Leave Law, the implementing rules and regulations (IRR) of which were signed by Labor Secretary Silvestre Bello III on 1st May. This Act, whose principal sponsor and author in the Senate was Senator Risa Hontiveros, provides that all female employees from both the government and private sectors will now be granted the expanded maternity leave of one hundred five (105) days with full pay. Moreover, the new law has given seven (7) days of leave credits that are transferable to fathers. As for Solo Parents, an additional fifteen (15) days of paid leave will also be granted to all single mothers.

The enjoyment of maternity leave by female employees cannot be deferred. The said benefits must be availed of either before or after the actual period of delivery in acontinuous and uninterrupted manner, and shall not exceed the one hundred five (105) day-period, as the case may be.

The Expanded Maternity Leave Law likewise affords mothers the option to extend their leave for another thirty (30) days without pay, provided that the employer is given due notice in writing at least forty-five (45) days before the end of the maternity leave.

The Expanded Maternity Leave Law also applies to every instance of pregnancy and has removed the old four-pregnancy restriction. It shall be similarly applied to all female employees regardless of civil status.

In case of miscarriage or emergency termination of pregnancy, a sixty (60) day paid maternity leave shall be granted to a female employee.

Maternity benefits under the Expanded Maternity Leave Law shall also be given to female employees in the informal economy, provided that they have paid and remitted to the Social Security System at least three monthly contributions in the twelve (12) month period immediately preceding the semester of their childbirth, miscarriage, or emergency termination of pregnancy.

Given the developments in the Expanded Maternity Leave Law, it is a joy to witness that women in this evolving and modern era are likewise given the support to balance the best of both worlds of career and family!

By Saliha Naila Abdullah 105-Day Expanded Maternity Leave Law

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The Salient Features of Administrative Adoption

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The Salient Features of Administrative Adoption

By Atty. Jonathan de Guzman.

 

On 13 March 2019, President Rodrigo Duterte signed RA 11222, ‘an act allowing the rectification of simulated birth records and prescribing administrative adoption proceedings for the purpose.’

Essentially, the law grants amnesty to all those involved with the simulation of birth certification – i.e. the falsifying of the civil registry to make it appear that a child was born to someone other than its biological mother – and provides for rectification of the records of those whose birth certificate was simulated before the enactment of the law. It will excuse from civil, criminal, and administrative liability those who simulated the birth certificate of a child prior to the effectivity of the Act, provided the petition for administrative adoption AND application to rectify the birth certificate are filed within ten years of the effectivity of the Act.

According to its principal sponsor and co-author, Senator Risa Hontiveros, it is hoped that this law will encourage more Filipino families to adopt children. Previously, many were wary of doing this for varying reasons. Some were fearful of the cost; others were afraid that once a child was reported as abandoned and free for adoption, social workers would simply take it away.

However, some would-be-adopters fail to appreciate the legal consequences of adopting a child without going through proper proceedings, as the ‘adoptee’ might  not be entitled to any share in the inheritance should the ‘adopter’ die, or vice versa. They might also be considered as strangers in any insurance claim if the ‘adoptee’ is not affiliated with the ‘adopter’ by blood. These are only some of the repercussions of not going through the proper procedure.

This law is intended to afford an opportunity of adoption to those who genuinely care for the well-being of a child and to expedite the adoption process for those would-be-parents who have been taking care of a potential adoptee for a considerable time.

It should be kept in mind that most adoption cases require certification from the Department of Social Welfare and Development (DSWD) that the child is legally available for adoption, except in cases where the adoptee has already attained the age of majority. Certification is also not needed when the adopter is within the 4th civil degree from the adopter – for example, when the adopter is an uncle or aunt.

The administrative adoption proceeding essentially has the same requirements as the domestic adoption, in addition to which the adopter has to show proof that the adoptee was living with him/her for at least three (3) years before the law took effect. The advantage of the administrative adoption proceeding is its simplicity, in that it does not entail tedious court proceedings.

What must the petition contain? What documents need to be attached?

The petition must contain the facts surrounding the simulation of the birth of the child and the reason why it is in the best interest of the child to proceed with the administrative adoption. The following documents must also be attached:

  1. Copy of the simulated birth certificate;

  2. Affidavit by the third person admitting the simulation of birth, if such simulation was done by a third person;

  3. Certification by the Barangay Captain where the child is residing that the adoptee has been living with the adopter for at least three (3) years before the law has taken effect;

  4. Affidavit of two (2) disinterested person residing in the same barangay where the adoptee is residing to attest to the fact that the adoptee has been living with the adopter for at least three (3) years before the law has taken effect;

  5. Certificate to declare the child available for adoption (unless it falls under the exception as mentioned above); and

  6. The photograph of the adoptee with the adopter taken at least three (3) months before filing the petition.

What is the procedure for the administrative adoption?

The petition must be filed before the Office of the Social Welfare and Development Officer (SWDO) of the place where the child is residing. If the petition is not sufficient, it will be returned stating the deficiency. If the petition is sufficient in form, the documents shall be forwarded to the Regional Director. Basically, in order for the petition to be sufficient in form and in substance, the facts surrounding the simulation of birth must be present AND all the documents must be presented before the SWDO.

The director will then send it to the Department Secretary to decide and act upon the petition. If the Director finds that the adoption is in the best interest of the child, the order of adoption shall be issued and it will retroact to the date that it was filed before the SWDO.

 

What effect will it have if the administrative adoption is granted?

  1. The simulated record of birth shall be cancelled

  2. Issuance of rectified birth record with the names of the biological parents or issuance of foundling certificate

  3. Issuance of new birth certificate.

The cancellation and the issuance of the birth certificate shall all be recorded in the Local Civil Registry where the adoptee is residing.

Grounds for rescission

The adoptee, with the assistance of SWDO/DSWD or by him/herself, can file the petition to rescind the adoption. The grounds for rescission are the same as with the Domestic Adoption with an additional catch-all provision for rescission.

    1. Repeated physical or verbal maltreatment

    2. Attempt on the life of the adoptee

    3. Sexual assault or violence

  • Abandonment and failure to comply with parental obligations(those under the family code such as providing for support)

  • Other acts that are detrimental to the psychological and emotional development of the adoptee. (emphasis supplied)

The process for rescission shall have the same process for filing the petition for administrative adoption.

Successive governments have been consistent in their role of protecting the welfare of children. The Family Code always favors legitimacy over illegitimacy, for example where it provides that children conceived and born during the subsistence of a marriage shall be presumed legitimate (Article 164 ). Now, the new, simplified, and therefore less costly, administrative adoption process eliminates the nuances of prolonged litigation in order to secure adoption papers. And though it is limited in scope, since this law only covers those whose birth certificate was simulated, it provides an opportunity for  more children to be given the status and benefits of legally adopted sons and daughters.

    Atty. Jonathan de Guzman. April 30, 2019. LINK: The Simulated Birth Rectification Act. RA11222.

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Mc Antony M. Liggayu Takes A Look At Certain Legal Realities Of The Entertainment World.

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BEHIND THE LENS…

Behind the glamour, the excitement and the grandeur of ‘showbiz’ lies another reality confronting those who work in it. For the entertainment world is composed not just of the ‘talents’ you see on the screen or stage; there are also those who work out of sight, behind the scenes, helping to deliver quality entertainment. And although both this group of people and the celebrities we know and (sometimes!) love are part of the same show or project, they have varying rights and statuses under the law.

 

THE TALENTS…

In the landmark case of Jose Y. Sonza vs. ABS-CBN Broadcasting CorporationG.R. No. 138051. June 10, 2004, the Supreme Court declared that not every service rendered for a fee creates an employer-employee relationship. “To hold that every person who renders services to another for a fee is an employee – to give meaning to the security of tenure clause – will lead to absurd results.”

To determine whether a person rendering services to another is an employee the most common test is the so called “Four-fold Test”, to wit:

  1. Right to hire or to the selection and engagement of the employee;

  2. Payment of wages and salaries for services;

  3. Power of dismissal or the power to impose disciplinary actions; and

  4. Power to control the employee with respect to the means and methods by which the work is to be accomplished. This is known as the “Control test”.

The most compelling of the four in determining whether a talent is an employee or an independent contractor is the control test. “The more supervision and control the hirer exercises, the more likely the worker is deemed an employee. The converse holds true as well – the less control the hirer exercises, the more likely the worker is considered an independent contractor.”

In any event the method of selecting and engaging a talent or an individual does not conclusively determine his status. All the circumstances of the relationship, with the control test being the most important element, must be considered. The unique skills, talent and celebrity status not possessed by ordinary employees, is a circumstance indicative, but not conclusive, of an independent contractual relationship.

Hence, a talent or a celebrity is an independent contractor offering not mere labor but his/her unique skills to entertain his audience.

 

THE TEAM BEHIND THE SCENES…

As to the members of the production team or those working behind the scenes, instructive is the case of ABS-CBN Broadcasting Corporation vs. Nazareno et. al. G.R. No. 164156., September 26, 2006. The High Court elucidated that “when the work done is an integral part of the regular business of the employer and when the worker, relative to the employer, does not furnish an independent business or professional service, such work is a regular employment of such employee and not an independent contractor.”

The said rule is likewise in conjunction with the four-fold test. In this case, the Honorable Supreme Court ruled that the employees were selected through ABS-CBN’s personnel department without regard to their special talent or unique skills; they were paid their wages and they did not have the power to bargain for a higher “talent fee”; their continued employment was subject to the will of their employer; and they were under the constant control of their supervisors. Thus, the presence of these factors taken together with the very definition of regular employees under the Labor Code, bolstered the status of Nazareno, et al. as regular employees.

 

THE LAW…

The difference in the employment status of talents/celebrities from the people working behind the scenes is crucial in determining the law applicable to their situation.

The Law on Contracts particularly governs the relationship between the talent and the one engaging their services. The provisions of the engagement contracts shall as long as not contrary to law, morals, good customs, public policy, and public order shall be complied with.  Any issue or dispute arising from such engagement shall be cognizable by the Regular Courts.

On the other hand, an employee’s relationship with their employer is governed by the Labor Code as amended, Implementing Rules issued by the Department of Labor and other pertinent government agencies, as well as special laws in relation to labor. Employees are also covered by the provisions of the Collective Bargaining Agreement (CBA) with employers. Any dispute in relation to the employee and employer relationship shall be cognizable by the Labor Arbiter, the National Labor Relations Commission (NLRC) and other quasi-judicial and quasi-administrative agencies.

 

THE CLOSING CREDITS…

In drafting the pertinent contracts, be it for an independent contractor or for a regular employee, the parties should be mindful of the applicable provisions of the law on Contracts, that“[t]he contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.” and the basic precept under the Constitution – “The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.”

 

Mc Antony M. Liggayu

 

Photography by Jakob Owens @ unsplash

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MFBR’s First Lex Speakeasy Gets Off to a Roaring Start!

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Business can be conducted in many places outside of the usual office environment. Golf courses are, as we all know, very popular, particularly with men; the power lunch or dinner in a favourite restaurant can be a pleasant way to manage affairs; and for those of us who like the occasional tipple, a bar can be a very convivial place to discuss new ideas or cement a friendship with a new business acquaintance.

This last example was the idea behind MFBR’s recently announced ‘LEX SPEAKEASY’ gatherings, and the first event held just last week certainly proved its worth.

Despite the challenges of Manila’s fearsome Friday night traffic, attendance was very nearly 100%, and, having quickly (in the space of an hour!) turned our offices into an open bar, MFBR had the pleasure of welcoming representatives from both Filipino and foreign-owned companies, as well as clients and friends both old and new.

There were no speeches, no standing on ceremony, just a relaxed atmosphere where everyone could unwind and chat after a busy week. Discussions ranged across many subjects, from industrial relations to legal barriers and incentives, with raising finance and the problems faced by start-ups very much to the fore. Luckily the MFBR attorneys were on hand to offer advice, as well as soda. Introductions were also made between entrepreneurs, professionals, investors and attorneys, which will hopefully bear fruit in the future.

Because it’s the long term that interests us here. The Speakeasy will, we hope, be a forum where discussions continue from one month to the next, and where the seeds of ideas will germinate, grow and blossom over time.

And if a good single malt whisky or a white wine help speed up that process, then who are we to argue?

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