legal Free Legal Advice

[Hachidan]

Hachidan:

 

Once you are employed by a company by reason of your expertise and professional capabilities... all intelectual property made formed or created pursuant to your engagement as a regular employee of that company becomes property of that firm you are working for.

 

all provisions of a consensual contract ---provided it is not illegal or contrary to law and the provisions of the new Civil Code and other special laws are enforceable and valid.

 

There is no prohibition in law which restricts the stockholder and incorporators of a company the decision to retire the firm or shorten its corporate life---provided they pay all accountabilities and other labor related actions of the firm requiring disursment of money.

 

Likewise the same incoporators can disssolve the firm and form a new one with entirely different set of policies but same business.

 

do hope it helps...

 

Butsoy

Butsoy, thanks for the quick reply. i've one more clarifications to make if you may.

 

is the waiver of ones right to seek employment on his field of experties for 3 years (especially when it is in the artististic area, it is something that you do best, the only thing u know how and what to do), not contrary to public order, public policy, customs, etc? looks like it certainly isn't contrary to law as what i was hoping for, and this sure isn't preducial to a third party either...

 

is there similar jurisprudence to this that might help?

 

i was really hoping that this is, if not similar, worse, than that of CUI VS ARELLANO UNIVERSITY.

[Roubaix]

Sir Butsoy,

 

We really need another Lawyers EB. Lets think about making a psuedo law firm. Lets give our collective soul name. What do you say?

[matlock]

I agree, I hope I can join that EB.....

[bunjee]

ATTY. BUTSOY, kilala na yata kita. Kung ikaw nga yung naiisip ko dun sa mandatory read namin sa CONSTI, eh isa lang ang masasabi ko, IDOL TALAGA KITA!!! Cool mo!

 

I agree with JEDI MASTER ROUBAIX, an EB is in order.

[the_broker]

Took 2 1/2 years of law in Ateneo. Does that count?

sure

[kswissone]

Its nice to see a legal thread here I'm just a fourth year law stude kaya marami pa ak bigas na kakainin. Mukhang madami "matitinik" na lawyers dito, matinik in law and in girls hope 2 b lyk u guys soon.

[Wolf]

hope we law studes can join in the EB. tsaka sana walang exams.

[bunjee]

Dapat kasama lahat sa EB at syempre dapat walang exams, we all know na nakakapraning ang law exams. Our EB's should help us relax, not unduly complicate our lives. So Pareng WOLFSTER, i second the motion.

[Guest templar]

- A, inc. informed its employees that it will be closing shop very soon

- B, inc. drafted an employment contract which provides, among other common employment contractual provisions...

    * an employee voluntarily resigned from A, inc.

    * that his/her tenure from A, inc. will be carried over to B, inc.

    * they will be subject to the provisions of the contract (no mention of security of tenure naturally since its under contractual provisions already)

    * a waiver of an employee not to engage in similar job to other companies engage in similar business with B, inc. in a period of 36 months

    * and the breach of the same, an amount of 1M plus other liquidated expenses, legal fees shall be imposed on the employee

- some employees of A, inc. already signed such an employment contract

 

issues:

- whether or not, a right to pursue the profession of choice (which happen to be your field of experties, digital art, among others but mostly intellectual properties) is waivable.

 

- whether or not, the damages setforth is demandable.

 

- whether or not, it is legal for the incorporators of A, inc. to dissolve its company and form a new one which will continue the business of A, inc. but effectively makes all regular employees of A, inc. contractual employees now of B, inc?

 

- whether or not, the transfer or tenure from A, inc. to B, inc. is standing considering that employees will no be under the contractual agreement between B, inc. and its employees.

P.S. (Pahabol Sagot)

 

1. On the first issue - the constitutionality and legality of the "Non-Competition Clause" has been long settled under English law (where it originated), US law and Phil. law. It is actually a clause most widely used nowadays on employees with unique skills or talents that companies don't want their competitors to have.

 

The premise is that the affected party is not actually prohibited from exercising his profession to earn a living and, consequently, his right to life and property are not violated. What he is prohibited from doing for a limited period of time is exercising his profession, by himself or in another partnership/company, in direct competition with his former employer. He is not prohibited from exercising his profession by himself or in another partnership/company for as long as it is not in direct competition with his former employer. And the prohibition is only for a limited period of time, the premise being that when he agreed to his contract he is deemed to have included the period of prohibition in his compensation package (i.e. he is deemed paid for the period he cannot work because of the non-compete clause).

 

Where the prohibition is not absolute or, even if absolute, was compensated in an amount accepted in contract by the affected party, there can be no violation of that person's right to life or property.

 

Trivia - When Purefoods bought Arce Ice Cream from the Arce family, they didn't have a non-compete clause in their agreement. Result - Purefoods came out with Selecta carrying all the flavors of Arce Ice Cream; the Arce family continued with their Arce Ice Cream brand name and flavors. Purefoods went to court but withdrew eventually.

 

2. On the second issue - Yes, one can provide for any amount of damages in a contract but any such damage provision is not necessarily due! Damages must be proven and any damage award will depend on the amount of damage proven or commensurate to the damage proven.

 

3. On the third & fourth issues - there is an inherent inconsistency in the consequences anticipated. How can the tenure of employees in A be carried over in B under a contractual arrangement?

 

It's like saying I agree that you Mr. Santos has been employed by me since 3 yrs. ago by contract. I'm sure that in most cases, the tenure of the employees antedate the incorporation of B. So how can B agree to employ someone even before it came to exist?

 

Even assuming that the longest tenure postdates the formation of B, how can B sustain the argument that these employees are contractual in nature when it recognizes "tenure" which is peculiarly associated with regular employment? Di ba "term" relates to contract, as "tenure" relates to regular employment?

 

At any rate, contractual employees do not merely become such because of the presence of a contract; the nature of employment is and will depend on other concomittant circumstances obtaining at the time of employment.

 

Thus, it is not the legality of the incorporation of B that is important; the issue is whether or not the incorporation of B and B's engagement of A's former employees changed the nature of employment of the employees.

 

Based on the facts given (i.e. recognition of tenure, A and B being one and the same entity, and performance of tasks essential to the business of B ), my opinion is that it can be argued that the employees are not merely contractual workers of B but regular employees.

Edited July 18, 2003 by templar666

[Guest templar]

Dapat kasama lahat sa EB at syempre dapat walang exams, we all know na nakakapraning ang law exams.  Our EB's should help us relax, not unduly complicate our lives. So Pareng WOLFSTER, i second the motion. 

Cge walang exams .... trivia quiz na lang

 

Example : Name the case where the girl sued for legal separation kasi ayaw na nyang i-BJ yung husband nya ..... he he he she couldn't swallow it anymore :evil:

 

Or the criminal case of concubinage (sex under scandalous circumstances), which was proven beyond reasonable doubt, when the erring husband got his dick trapped inside his paramour's vagina (which developed severe cramps ) and they had to be taken to the hospital still "joined down below"? .... he he he

 

....don't you just love the law? .... it's actually the richest source of chismis about the high and mighty

[Hachidan]

thanks guys, i appreciate all the answers. you guys are great! :wizard:

[jackryan]

mga masters, I was hoping if there will additional notes, comments, suggestions and legal facts to the posting I made earlier... I hope someone can spend time to add more to what was provided earlier.

 

I'll greatly appreciate it very much po.

[matlock]

hmmmmm..... kelan po ang EB?

 

Just want to say this, it was a great day for the justice system re: the decision about the Marcos' wealth. What you think peeps?

[daklesse]

bro, its me again, wag mo mashado i burden ang sarili mo with the win2k3. is it the Orig version or the evalauation copy?

 

para makapasok ang mga client computers dyan sa server mo, they must have authorization. You have to install the Active Directory, Also, install the file and printer sharing server.

 

If you are having problems accessing internet, disable mo muna yung firewall sa server para makapasok lcients

[kswissone]

I just hope the money actualy goes to the persons that it was taken from, which is the people. Hindi gamitin ng kng sino sino lang. How bout the cojuangco case do you think the coconut farmers would actualy benefit from it? I think not.