Apprentices and Learners

RA 7796TESDA

SEC. 4.Definition of Terms.—As used in this Act:xxx xxx xxx

(j) “Apprenticeship” training within employment with compulsory related theoretical instructions involving a contract between an apprentice and an employer an established period assured by an apprenticeable occupation;

(k) “Apprentice” is a person undergoing for an approved apprenticeable occupation during an established period assured by an apprenticeship agreement;

(l) “Apprenticeship Agreement” is a contract wherein a prospective employer binds himself to train the apprentice who in turn accepts the terms of training for a recognized apprenticeable occupation emphasizing the rights, duties and responsibilities of each party;

(m) “Apprenticeable Occupation” is an occupation officially endorsed by a tripartite body and approved for apprenticeship by the Authority;

(n) “Learners” refer to persons hired as trainees in semi-skilled and other industrial occupation which are non-apprenticeable. Learnership programs must be approved by the Authority [TESDA].

(p) “Dual system/Training” refers to a delivery system of quality technical and vocational education which requires training to be carried out alternately in two venues: In school and in the production plant. In-school training provides the trainee the theoretical foundation, basic training, guidance and human formation, while in-plant training develops his skills and proficiency in actual work conditions as it continue to inculcate personal discipline and work values;

a) Apprentice A person undergoing an approved apprenticeable occupation within a particular period provided for in the apprenticeship agreement. [Sec. 4(k), ibid.]

Apprenticeable Occupation an occupation officially endorsed by a tripartite body and approved by the Authority. [Sec. 4(m), ibid.]

Apprenticeship Agreement a contract wherein a prospective employer binds himself to train the terms of training for a recognized apprenticeable occupation emphasizing the rights, duties and responsibilities of each party. [Sec. 4(l), ibid.]

b) Trainee (w/ or w/o pay) a participant in a vocational, administrative, or technical training program – established for the purpose of acquiring and developing job-related skills. [Sec. 4(i), ibid.]

c) Learner a person hired as a trainee in semi-skilled and other industrial occupation which are non-apprenticeable. [Sec. 4(n), ibid.] BUT, learnership program must be approved by the Authority. [ibid.]

CASES:

The Labor Code defines an apprentice as a worker who is covered by a written apprenticeship agreement with an employer. One of the objectives of Title II (Training and Employment of Special Workers) of the Labor Code is to establish apprenticeship standards for the protection of apprentices. [Century Canning Corporation v. Court of Appeals, G.R. No. 152894, August 17, 2007]HOWEVER,

In order to be an apprentice, the apprenticeship program the worker agreed to undergo should first be approved by the DOLE (now transferred to TESDA) before he can be hired as an apprentice. Otherwise, the person hired will be considered a regular employee. [Century Canning Corporation v. Court of Appeals, supra]

BUT, A prior approval obtained from DOLE (now transferred to TESDA) is a preliminary step towards its final

approval. Thus, pending final approval of the apprenticeship program upon a person’s assumption of work does not instantaneously give rise to employer-employee relationship. [Century Canning Corporation v. Court of Appeals, supra]

Republic Act No. 7796, which created TESDA, has transferred the authority over apprenticeship of the DOLE to the TESDA. RA 7796 emphasizes TESDA’s approval of the apprenticeship program as a pre-requisite for the hiring of apprentices. [Century Canning Corporation v. Court of Appeals, supra]

The requisite TESDA approval of the apprenticeship program prior to the hiring of apprentices was further emphasized by the DOLE with the issuance of Department Order No. 68-04 on 18 August 2004 xxx, which provides the guidelines in the implementation of the Apprenticeship and Employment Program of the government, [and which] specifically states that no enterprise shall be allowed to hire apprentices unless its apprenticeship program is registered and approved by TESDA. [Century Canning Corporation v. Court of Appeals, supra]

There is no valid apprenticeship if:(1) the agreement submitted to TESDA was made long after the workers started undergoing

apprenticeship;(2) the work performed by the apprentice was different from those allegedly approved by

TESDA;(3) the workers undergoing apprenticeship are already skilled workers; or(4) the workers were required to continue undergoing apprenticeship beyond six months.

[Atlanta Industries, Inc., et al. vs. Sebolino, et al., G.R. No. 187320, January 26, 2011, Brion, J.]

While the employer may argue that there is a need to train its employees through apprenticeship, this phase should not be more than six months, and upon expiration of the agreement, the retention of the employees for all intents and purposes, makes them regular employees. A second apprenticeship for a second skill not mentioned in the apprenticeship agreement is a violation of the Labor Code. [Atlanta Industries, supra]

12.1. Distinctions between Learnership and Apprenticeship

ART.  58. Definition of Terms. —As used in this Title:(a)  An “apprentice” is a worker who is covered by a written

apprenticeship agreement with an individual employer or any of the entities recognized under this Chapter [Ch.1, Title II]

ART. 73. Learners defined.—Learners are persons hired as trainees in

semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed three (3) months.

ART. 74. When learners may be hired.—Learners may be employed when no experienced worker, are available, the employment of learners is necessary to prevent curtailment of employment opportunities, and the employment does not create unfair competition in terms of labor costs or impair or lower working standards.

APPRENTICESHIP LEARNERSHIPPeriod of training not to exceed six months [Art. 61, LC] Not to exceed three (3) months [Art.

75, LC]Type of Work Highly technical work in an Industry

[Art. 60, LC]Semi-skilled and other Industrial work [Art. 73, LC]

Qualifications At least 14 years of age with vocational aptitude and capacity, and ability to comprehend and follow oral and written instructions [Art. 59, LC]

When no experienced worker is available in the industry [Art. 74, LC]

Salary Not less than 75% of applicable minimum wage, [Art. 61, LC] EXCEPT if training is required by the school or training program, or requisite for graduation or board examination. [Art. 72, LC]

Not less than 75% of applicable minimum wage, [Art. 75, LC] EXCEPT for learners in piecework, where salary shall be paid in according to the minimum wage imposed. [Art. 76, LC]