K-12 Legal Issues and Labor Concerns - Atty Joseph Noel Estrada

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K-12 Legal Issues and Labor Concerns - Atty Joseph Noel Estrada

K-12 = ?

FINDING ANSWERS TO LEGAL ISSUES

AND LABOR CONCERNS

Atty. Joseph Noel M. Estrada


DECLARATION OF POLICY

Article XIV, Section 2(1) of the 1987 Philippine

Constitution

The State shall establish, maintain, and support

a complete, adequate, and integrated system of

education relevant to the needs of the people

and society;


SEC. 3. Basic Education. Basic education is

intended to meet basic learning needs which

provides the foundation on which subsequent

learning can be based. It encompasses

kindergarten, elementary and secondary

education as well as alternative learning systems

for out of-school learners and those with special

needs.


Culled from Sec. 4(b) of REPUBLIC ACT NO.

9155, “GOVERNANCE OF BASIC EDUCATION,

ACT”


ENHANCED BASIC EDUCATION

AT LEAST

one (1) year of kindergarten education

six (6) years of elementary education

six (6) years of secondary education

Secondary education includes:

four (4) years of junior high school, and

two (2) years of senior high school


THREE (3) STAGES IN BASIC EDUCATION

KINDERGARTEN EDUCATION

ELEMENTARY EDUCATION

SECONDARY EDUCATION


ENHANCED BASIC EDUCAITON

• R.A. 10157, “Kindergarten Act of 2012” –

Institutionalization of Kindergarten Education.

• Elementary Education- compulsory; second

stage; fixed at six years (no longer usually 6 or

7); entrants are typically 6 year olds


• Secondary Education- compulsory third stage;

Junior HS and Senior HS; 14 and 16 year old

entrants respectively


CHANGES INTRODUCED:

• Confirms the institutionalization of mandatory

Kinder;

• Fixes Elementary education to 6 years;

• Basic Education now includes junior high

school and senior high school; and

• Secondary education is made “compulsory”.


Compulsory Secondary Education?

Art. XIV, Constitution, Section 2. The State shall:

“Establish and maintain, a system of free public

education in the elementary and high school

levels. Without limiting the natural rights of

parents to rear their children, elementary

education is compulsory for all children of

school age;”


Elementary Education Act of 1953

SECTION 5.It shall be compulsory for every

parent or guardian or other person having

custody of any child to enrol such child in a

public school, the next school year following the

seventh birthday of such child, and such child

shall remain in school until the completion of an

elementary education SUBJECT TO EXCEPTIONS.


By making secondary education compulsory, it

creates an obligation that is legally

demandable.

But whose primary obligation is it to provide

elementary and secondary education?


The State recognizes its primary legal obligation

to provide a free elementary and secondary

education under Art. XIV Sec. 2 of the

Constitution.

It is therefore compulsory for parents to keep

their children in school as long as the

government can provide free public schools,

which now includes secondary education.


• Revised Penal Code, Art. 277. Abandonment

of minor by person entrusted with his custody;

indifference of parents. — The penalty of

arresto mayor and a fine xxx

• shall be imposed upon the parents who shall

neglect their children by not giving them the

education which their station in life require

and financial conditions permit.


NO TO MOTHER TONGUE!


YES TO MOTHER LANGUAGE!


Mother Language

Kinder and Grades 1-3 teaching materials shall

be in native language

Grades 4-6- DepEd shall introduce mother

language transition program introducing Filipino

and English.


Mother Language – refers to the language/s first

learned by the child, which he identifies with,

used as a native language, knows best and uses

most. Includes sign language of PWDs.

Native Language- traditional speech variety in

the region, area, or place.


K-12 Labor

Issues Affecting

Private HEIs


2 Major Pains

1. Qualification of teachers

2. Retention and Displacement of

affected faculty


SECTION 8. a.

• DepEd and Private Education Institutions

SHALL HIRE:

Graduates of science, mathematics, statistics,

engineering, music and other degree courses

with shortages in qualified LET applicants

Provided, That they pass the LET within five (5)

years after their date of hiring, EXCEPT for Part-

Timers.


SECTION 8. b.

• Graduates of technical-vocational courses to

teach in their specialized subjects in the

secondary education: Provided, That these

graduates possess the necessary certification

issued by TESDA: Provided further, That they

undergo appropriate in service training to be

administered by DepEd or PEI at the expense

of DepEd;


SECTION 8. c.

Faculty of higher education institutions (HEIs) be

allowed to teach in their general education or

subject specialties in the secondary education:

Provided, That the faculty must be a holder of a

relevant Bachelor’s Degree and must have

satisfactorily served as full-time HEI faculty.


• Relevant Bachelor’s Degree

• No LET requirement

• Threshold tenure is up to the PEI

• No Master’s Degree Requirement?!


Full-Time Faculty, Defined

• DOLE-DECS-CHED-TESDA ORDER NO. 1, S.1996

Full-Time faculty is defined as one who

possess at least the minimum academic

qualifications set by DECS for basic ed, CHED

for higher ed, and TESDA for tech-voc.

• Under the MORPHEI, to teach in HEIs, faculty

must have relevant MA Degree.


Sec. 8. c.

DepEd and PEIs may hire expert practitioners to

teach in Secondary education on a part-time

basis only subject to standards to be adopted by

DepEd and appropriate agencies.


OPTIONS FOR PEIs

1) FOR BASIC EDUCATION SCHOOLS WITHOUT A

COLLEGE:

OFFER SHS;

or

PARTNER WITH OTHER SCHOOLS TO OFFER SHS


2) FOR COLLEGES WITHOUT BASIC EDUCATION:

OFFER STAND ALONE SHS;

OR

PARTNER WITH BASIC EDUCATION SCHOOLS TO

OFFER SHS.


3) FOR BASIC EDUCATION SCHOOLS WITH

COLLEGE:

OFFER GRADES 11 AND 12

OR

PARTNER WITH FEEDER SCHOOLS


PERSONNEL IMPLICATIONS

1. PEI HIRES NEW Teachers

2. PEI ABSORBS EXISTING Faculty

WHO ARE QUALIFIED TO TEACH

GEN.ED. OR SHS SUBJECTS


What PEIs/HEIs need to decide

Faculty to Retain:

• CHED curriculum on GE

• Number of years of Tertiary Programs


K-12-16!


What happens to those who don’t qualify?


OPTIONS FOR THE SCHOOL

I. PROBATIONARY AND PART-TIME FACULTY:

Non-Renewal Of Contracts


OPTIONS FOR THE SCHOOLS

II. FOR TENURED FACULTY:

1. Re-classify to administrative or academic

support positions

2. Assign Faculty to do research for 2 years

3. Payroll employment for 2 years

4. Floating Status


5. Offer Redundancy or Retrenchment Programs

6. Sabbatical Leave

7. Apply Retirement Plan or Offer Early

Retirement Package

8. Offer Voluntary Redundancy Program


IMPLICATIONS TO RETAINED

FACULTY

1. Pay rates: Public vs. Private; annualized vs.

per unit; lower academic rank

2. Teaching Load

3. Diminution of Pay?


LABOR CODE

ART. 100. PROHIBITION AGAINST ELIMINATION

OR DIMINUTION OF BENEFITS.


Diminution in Pay

• Change of Assignment/Change in curriculum

• De-Loading of Full-time Faculty


Tests to Apply

Inherent Management Prerogative?

Proprietary Right of the School?

Vs.

Entitlements enforceable/demandable

obligation against the school?


• APPLY

RETIREMENT PLAN

• OFFER EARLY

RETIREMENT PLAN


• RETRENCHMENT

• REDUNDANCY


VOLUNTARY REDUNDANCY


PROOF OF REDUNDANCY

• Evidence must be presented to substantiate

redundancy such as but not limited to the new

staffing pattern, feasibility studies/proposal,

on the viability of the newly created positions,

job description and the approval by the

management of the restructuring (Panlilio vs.

NLRC, 1997).


PROOF OF REDUNDANCY

• It is the employer’s burden to show that

redundancy exists. It is not enough for a

company to merely declare that it has become

overmanned. It must produce adequate proof

of such redundancy to justify the dismissal of

the affected employees (Asufrin vs. San

Miguel Corporation, 2004).


“JUDICIAL NOTICE”

• DOLE SHOULD TAKE “JUDICIAL NOTICE” OF

THE CONSEQUENCES IN IMPLEMENTING K-12:

ADDITIONAL 2 YEARS OF BASIC EDUCATION

AND DISRUPTION OF YEARS IN HIGHER

EDUCATION.


Dear DOLE,

PLEASE RELAX THE BURDEN

OF PROOF OF REDUNDANCY.

Love,

Private Educational Institutions


REQUIREMENTS OF VALID

REDUNDANCY PROGRAM

• A written notice served on both the

employees and the Department of Labor and

Employment (DOLE) at least one month prior

to the intended date of retrenchment as

required by the Labor Code;


• Payment of separation pay equivalent to at

least one month pay or at least one month

pay for every year of service, whichever is

higher;

• Good faith in abolishing the redundant

positions; and


• Fair and reasonable criteria in ascertaining

what positions are to be declared redundant

and accordingly abolished. (See Caltex vs.

NLRC, 2007, )


Separation Pay

• Section 32 (B)(6)(b) of the Tax Code, as amended,

provides that any amount received by an official or

employee, or by his heirs, from the employer as a

consequence of separation from service because of

death, sickness or other physical disability — or for

any cause beyond the control of said official or

employee, such as retrenchment, redundancy, or

cessation of business — is exempt from income tax

and, consequently, from withholding tax.


• The phrase "for any cause beyond the control

of the said official or employee" connotes

involuntariness on the part of the official or

employee. Separation from the service of the

official or employee must not be asked for or

initiated by him. This means the separation

was not of his own doing.


• It is noted that the same treatment applies to

benefits given to an employee who voluntarily

resigns due to health reasons that have

prevented him from returning to work. The

Tax Code provides that amounts received by

an employee due to sickness or physical

disability are also exempt from income tax.


Dear BIR:

PLEASE EXEMPT FROM TAXES ANY SEPARATION PAY

RECEIVED UNDER VOLUNTARY REDUNDANCY

PROGRAM IN IMPLEMENTING K-12.

Love,

Faculty


Exodus of faculty to other industries or to

public schools will likely cause many

private HEIs to close.


LET IT BE KNOWN:

HEIs need to keep their qualified faculty

because it would cost them more to lay

them off.


Thank you!

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