Tuesday, November 12, 2024

 R.A. 9287

Title Six, Crimes Against Public Morals

GAMBLING AND LOTTERY

A. Introduction

The law on gambling exemplifies the adage that what is legal is not necessarily moral. Although gambling is under the title Crimes Against Morals, the law on gambling does not take morality into consideration. It does not punish gambling per se because they adversely affect public morals, but that it punishes are gambling games which are not covered by a franchise or permit from the government.

B. The applicable laws are:

(1) Presidential Decree No.1602 : (Simplifying and Providing Stiffer Penalties for Violations of Gambling Laws) and (2). R.A. No. 9287 ( An Act Increasing the Penalties for Illegal Numbers Games, Amending Certain provisions of P.D. 1602 and for Other Purposes).

C. Meaning and coverage of Gambling :

1. Gambling games refer to any game or scheme whether upon chance or skill, wherein wagers consisting of money, articles or vale or representatives of value, are made.

2. It is the fact that bets are made which makes the game a gambling game. The game may be decided purely on chance, purely on skill, or both.

It becomes illegal and therefore prohibited if it is not authorized by a franchise. 

3. However parlor games are exempted such as those during wakes , unless  it clearly appears that the wake is unnecessarily prolonged as to be a cover excuse  to conduct illegal gambling

D. Basis for Liability:

A mere spectator is not liable. An accused must participate in an illegal gambling game in any of the following manner:

1.     Participating as a bettor

2.     Acting as a personnel or staff: such as being the guard or look-out; usher, cook, washer or entertainer

3.     Allowing one’s vehicle, house, building, or land, to be used in the operation of an illegal gambling game

4.     Acting as a collector or agent

5.     Acting as coordinator, controller or supervisor

6.     Acting as a maintainer, manager, operator

7.     Acting as a financier or capitalist

8.     Acting as a protector coddler

9.     Possession of Gambling paraphernalia or materials

10.   Failing to abate or to take action or tolerating, by a public official, of a gambling game within his jurisdiction

11.  Any parent, Guardian, or persons exercising moral authority or ascendancy over a minor, ward or incapacitated person who induces or causes the latter to participate in an illegal numbers game

E. Penalties:

If the foregoing pertains to any numbers game the penalties are specifically those provided for in R.A. 8287

F.  Lottery:

A form of gambling whereby prizes are distributed among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize. It requires (i) a consideration (ii) chance or hazard and (iii) prize. Examples are raffle games.

1. Question:

When are promo sales or advertising schemes considered lottery/gambling? ( This refers to the practice of advertising goods for sale offering the purchasers a chance to win a prize by giving them coupons to be drawn later )

Answer: The scheme is considered a lottery or gambling  if : (1) the public pays more than the price of the article because the excess is used to defray or cover the cost of the prize or (2) the article is not saleable without the prize and it becomes saleable only because of the prize. 

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Complaint for Unlawful Detainer Sample

 


REPUBLIC OF THE PHILIPPINES

METROPOLITAN TRIAL COURT

City of Manila

Branch 1


AAA,
                           Plaintiff,
                                                                                       CIVIL CASE No. _____
                           -versus-                                               FOR: Unlawful Detainer

BBB,
                           Defendant.

x-----------------------------------x

COMPLAINT

          COMES NOW, the plaintiff, through the undersigned counsel and unto this Honorable Court, most respectfully avers:

1. That the plaintiff, AAA, is of legal age, Filipino citizen, single, with residence and postal address at 123 Benitez Street, Manila;

2. That the defendant, BBB, is of legal age, Filipino citizen, single, with residence and postal address at 456 Modesto Street, Manila, where they may be served with summons and other court processes;

3. The plaintiff is the owner of a land over which an apartment had been constructed located 654 San Pedro Street, Manila;

4. By virtue of a contract of lease, the plaintiff leased unto the defendant the aforesaid apartment for a consideration of P5,000.00 a month as rental to be paid within the first ten (10) days of each month starting November 3, 2011;

5. The defendant failed to pay the agreed rental for several months starting February 19, 2012 up to the present;

6. On May 3, 2012, the plaintiff sent a letter of demand to vacate the apartment which was received by the defendant as shown in the registry return receipt hereto attached as Annex “A”;

7. Despite said letter of demand which was repeated by oral demands, the defendant failed and still refused to pay the agreed amount of rentals and to vacated the apartment;

8. By reason of failure of the defendant to vacate the premises and to pay the unpaid rentals, the plaintiff was compelled to file this complaint engaging the services of counsel in the amount of P10,000.00.

          WHEREFORE, premises considered, it is most respectfully prayed unto this Honorable Court that, after hearing, judgment be rendered ordering the defendant:

1. To vacate the subject premises;

2. To pay the amount of P5,000.00 per month as compensation for the reasonable use of the subject premises until they finally vacate the said premises;

3. To pay the plaintiff the cost of the suit.

          City of Manila, September 24, 2012.
  

                          CCCC LAW OFFICE

                                                Counsel for the Plaintiff

                                              Unit 123, Victoria Tower I

                                                     Taft Avenue, Manila

    

                                                                         By:

                                                                            DDDD

                                                              Roll of Attorney No. 98765

                                           IBP No. 12345/2-5-12/Manila

                                                   PTR No. 87654/12-22-11/Manila

 

VERIFICATION/CERTIFICATION OF FORUM SHOPPING


Republic of the Philippines )
City of Manila                      ) S.S.

          I, AAA, of legal age, Filipino citizen, single and resident of 123 Benitez Street, Manila, after having been duly sworn to in accord Nance with law do hereby depose and say:

1. That I am the plaintiff in the above-entitled case;

2. That I have caused the preparation of the foregoing complaint and have read the allegations contained therein;

3. The allegations in the said complaint are true and correct of my own knowledge and authentic records;

4. I hereby certify that I have not commenced any other action or proceeding involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of my knowledge, no such other action or claim is pending therein;

5. That if I should learn thereafter that a similar action or proceeding has been filed or is pending, I hereby undertake to report that fact within five (5) days therefrom to the court or agency where the original pleading and sworn certification contemplated herein have been filed;

6. I executed this verification/certification to attest to the truth of the foregoing facts and to comply with the provisions of Adm. Circular No. 04-94 of the Honorable Supreme Court.

          IN WITNESS WHEREOF, I have hereunto affixed my signature this 24th of September 2012, in the City of Manila.

                                                                                                                    

AAA


          SUBSCRIBED AND SWORN to before me this _______ day of September, 2012, in the City of Manila, affiant exhibiting to me his Driver’s License No. 12345 issued by the Land Transportation Office on April 8, 2012 at the City of Manila.

                                             ATTY. NO CASE

                                                            Notary Public

                                 My Commission Expires Dec. 31, 2012

                                Roll of Attorney No. 11111

                        IBP No. 11111/2-5-12/Manila

                                           PTR No. 11111/12-22-11/Manila



Doc. No. ________
Page No. _______
Book No. _______
Series of 2012.

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Friday, November 8, 2024

SAMPLE OF A POSITION PAPER FOR THE EMPLOYER IN A LABOR CASE : MONEY CLAIMS

 

 




   Republic of the Philippines

NATIONAL LABOR RELATIONS

COMMISSION

Sub-Regional Arbitration Branch VII

Dumaguete City

 

MR. X,

                      Complainant,

 

           -versus-                                              

 

AAA  SECURITY AGENCY AND/OR MR. Y, OWNER

                      Respondent.                

 

RAB No. VII-08-0000-24-D

 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - /

 

POSITION PAPER

(FOR THE RESPONDENT)

 

Respondent, by the undersigned counsel, respectfully submits his Position Paper, alleging as follows:

1.     That the complainant MR. X is Filipino, of legal age, married/single and a resident of Vallehermosa, Negros Oriental;

 

2.     That the respondent is AAA SECURITY AGENCY, a corporation duly organized and existing under and by virtue of Philippines Laws, with principal office at Dumaguete City, Negros Oriental, Philippines, represented herein by MR. Y, of legal age, Filipino, married to _____, and a resident of Dumaguete City, Negros Oriental;

 

3.     That AAA SECURITY AGENCY is corporation engage in providing security services to commercial, institutional and industrial businesses in Negros Oriental. The said business is located at Dumaguete City, Negros Oriental, Philippines, where it may be served with summons and other processes of the Labor Arbiter;


4.     That the complainant is alleging under payment minimum wage, nonpayment of 13th Month Pay, Holiday Pay, Overtime Pay, Night Shift Differential, and Service Incentive Leave;


5.     That the complainant was an employee of AAA Security Agency and detailed as a security guard in the following business establishment:


January to December 2021 – Prawn farm - P293 per day

January to December 2022 – Prawn farm – P293 per day

January to July 2023 – Mercury Drug Store – Bacong - P445 per day

 

6.     That during his employment in the prawn farm, he was provided with board and lodging    and only worked eight hours a day and in Mercury Drug Store, he worked from 8am to 12nn and 6pm to 10pm only.

 

As proof of his salary, the respondent is attaching the following:

a.            copy of the calculation of his monthly salary is attached as Annex- A;

b.            copy of the calculation of the benefits of the employees of Century Security Agency as Annexes- B and B-1, and

c.            copy of the deduction slip as Annex – C;

 

Under payment minimum wage 

7.     Wage as the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and includes the fair and reasonable value, as determined by the Secretary of Labor and Employment, of board, lodging, or other facilities customarily furnished by the employer to the employee (Article 97 (f) of the Labor Code)

With regard to under payment of salary, the respondent is a providing for the board and lodging for the complaint which is a valid deduction for his salary during his stay in the prawn farm from January 2021 to December 2022.


Under Article 113 of the Labor Code, no employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except for the following cases:

a.     In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance;

b.     For union dues, in cases 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; and

c.     In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment.

Article 114 of the Labor Code also allows deductions on employee’s wages in case of loss or damages to tools, materials or equipment supplied by the employer to the employee where the employer is engaged in trade, occupation or business where practice of making deductions or requiring deposits is recognized.

Article 259 (e) of Labor Code also allows deductions on employee’s wages with regard to payment of agency fees for non-union members who accept the benefits from the Collective Bargaining Agreement (CBA) negotiated by the bargaining union.

Also, under the Rules implementing the Labor Code (IRR of Labor Code), particularly Book 3 on Conditions of Employment, deductions on wages are allowed if employer received a written authorization from the employee for payment to a third (3rd) person. This is valid only when the employer did not receive any pecuniary benefit directly or indirectly from the transaction (Rule VIII, Book 3, Section 10 (b) of IRR).

Deductions on wages based on the value of meals and facilities are also allowed as long as the acceptance of the employee is voluntarily made (Rule VII-A, Book 3, Section 7).

On other law, under Articles 1706 and 1708 of the New Civil Code, withholding of wages because of the employee’s overdue debt to the employer and deductions made pursuant to a court judgment against the worker for payment of debts incurred for food, clothing, shelter and medical attendance are allowable deductions.

Facilities are deductible from wages. Facilities are items of expense necessary for the laborer's and his family's existence and subsistence so that by express provision of law they form part of the wage and when furnished by the employer are deductible therefrom, since if they are not so furnished, the laborer would spend and pay for them just the same. (SLL Cables vs. NLRC, March 2, 2011)

Due to the fact that the employer provided boarding and lodging to the employee during his employment in Prawn Farm, there is a valid deduction.

MONEY CLAIMS

8.     In determining the employee’s entitlement to monetary claims, the burden of proof is shifted from the employer or the employee, depending on the monetary claim sought. In claims for payment of salary differential, service incentive leave, holiday pay, and 13th month pay, the burden rests on the employer to prove payment.

This likewise stems from the fact that all pertinent personnel files, payrolls, records, remittances and other similar documents – which show that the differentials, service incentive leave and other claims of workers have been paid – are not in the possession of the worker but are in the custody and control of the employer. 

            13th month pay:

9.     All employers are required to pay their rank and file employees thirteenth-month pay, regardless of the nature of their employment and irrespective of the methods by which their wages are paid, provided they worked for at least one (1) month during a calendar year. The thirteenth-month pay should be given to the employees not later than December 24 of every year.

The thirteenth-month pay shall not be less than one-twelfth (1/12) of the total basic salary earned by an employee in a calendar year.

The "basic salary" of an employee for the purpose of computing the thirteenth-month pay shall include all remunerations or earnings paid by his or her employer for services rendered.

With regard to the issue of 13th month pay, the respondent was able to provide 13month pay for the year 2023 and 2022, as proven by the computation of benefits. Copy of the computation of benefits which is already attached as Annex – B. But for the year 2021, the corporation undertakes to release his 13th month pay upon agreement between the parties or based on the decision of the Honorable Labor Arbiter.

  Holiday pay:

 

10.   It is already included in the salary of the employee.

Holiday pay refers to the payment of the regular daily wage for any unworked regular holiday.

Every employee covered by the Holiday Pay Rule is entitled to the minimum wage rate (daily basic wage and COLA).  This means that the employee is entitled to at least 100% of his/her minimum wage even if he/she did not report for work, provided he/she is present or is on leave of absence with pay on the work day immediately preceding the holiday.

The respondent stands that the Holiday pay was already included in the monthly salary of the complainant. 

     Night Shift Differential:

 

11.  Night Shift Differential (NSD) refers to the additional compensation of ten percent (10%) of an employee’s regular wage for each hour of work performed between 10 p.m. and 6 a.m.

It is not applicable in this case, the employee did not work from 10pm – 6pm since January 2021 to December 2023.

                                                                  Service Incentive Leave:

 

12.  Every employee who has rendered at least one (1) year of service is entitled to Service Incentive Leave (SIL) of five (5) days with pay.

The service incentive leave may be used for sick and vacation leave purposes.  The unused service incentive leave is commutable to its money equivalent at the end of the year.  In computing, the basis shall be the salary rate at the date of conversion. It is given every end of the year.

In this case, the complainant was already given the SIL. SIL is designated as Five (5) Incentive pay, which was released last December 13, 2022 and June 13, 2023. This is proven by the computation of benefits which is already attached as Annex – B.

                                                           Overtime pay

13.  Overtime pay refers to the additional compensation for work performed beyond eight (8) hours a day.

The burden of proving entitlement to overtime work rests on the employee, as this monetary claim is not incurred in the normal course of business. It is thus incumbent upon the employee to first prove that he actually rendered service in excess of the regular eight working hours a day, and that he in fact worked on holidays and rest days. (Reggie Zonio v. 1st Quantum Leap Security Agency, Inc. and Romulo Par, G.R. No. 224944, May 05, 2021)

In the case of Paul Santiago v. CF Sharp Crew Management, Inc. (G.R. No. 1623419, July 10, 2007), the Supreme Court held that there are two conditions that need to be satisfied before an employee could be entitled to overtime pay. These are:

a.     rendition of overtime work; and

b.     submission of sufficient proof that overtime work was actually performed.

 

Since the complainant was not able to prove that he is entitled to overtime pay, the respondent is not liable. 

14.  Finally, in order to lessen the Court dockets which are heavily and unjustifiably congested as a result of the indiscriminate filing and to unduly burden the parties with the processes of the case, the respondent is willing to make a counter-offer of Twenty thousand pesos (P20,000) as a full settlement for the grievance of the complainant. 

 

PRAYER

 

 

            WHEREOF, PREMISES CONSIDERED, it is respectfully prayed of this Honorable Office that after due consideration, judgment be issued ordering the dismissal of the case.

 

RESPECTFULLY SUBMITTED.

 

Dumaguete City, Philippines, November 8, 2024

 

 

 

ATTY. CCC 

Counsel for the Respondent

Roll No. 000

PTR. No. 000-A 02/07/2024

IBP No. 000 - 02/19/2024

MCLE No. VII-XXXX until 4/14/2025

Red Cross Building,

Surban Street, Dumaguete City,

                                             Negros Oriental, Philippines

                                      0917108XXXX1/XXXX@yahoo.com

 

 

 

Copy Furnished:

 

ATTY. XXXXXX      

PAO                           

Guihulngan City

 

 

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  R.A. 9287 Title Six, Crimes Against Public Morals GAMBLING AND LOTTERY A. Introduction The law on gambling exemplifies the adage that what...