Guide on

A Presentation made by : Jeffrey Ace C. Tome BSBA- IV Human Resource Development Management

STATUTORY COMPENSATION AND BENEFITS The daily rate of employees for work performed on a certain day changes depending on whether it is regular work day, special day, rest day and regular holiday; There are two rates of overtime work. 125% for overtime duty on regular working day and 130% for work rendered on rest day, special days, regular holiday, and on occasions when two or more of said holidays and rest days concur in one work day;

 The

night-shift differential rate of 10% does not change no matter the type of working day. The workday rate serves as basis for the computation for the overtime and nightwork pay. Overtime amount is computed first before the night-shift differential.

REGULAR WORKING DAY Basic Pay Rate 100% of Php 382.00 Basic Daily Wage Php 382.00 Overtime Rate 125% of BDW

WORK ON SPECIAL DAY OR REST DAY 130% of Php 382.00 Php 496.60 130% of 496.60

WORK ON SPECIAL DAY FALLING ON REST DAY 150% of Php 382.00 Php 573.00 130% of Php 573.00

WORK ON REGULAR HOLIDAY 200% of Php 382.00 Php 764.00 130% of Php 764.00

WORK ON REGULAR HOLIDAY FALLING ON A REST DAY 200% of Php 382.00 + 30% of 200% of Php 382.00 Php 993.20 130% of Php 993.20

CHAPTER ONE: HOURS OF WORK

ARTICLE

82. Coverage. - The provisions of this Title shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations.

used herein, managerial employees refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. Field personnel shall refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.
As

A. COVERAGE AND EXCLUSIONS

provisions of the title apply to employees in all the establishments and undertakings whether for profit or not, even non-governmental organizations, as long as there is employer employee relationship. They have no application to the following: 1. Government employees, 2. Managerial employees, 3. Field personnel, 4. Members of the family of the employer who are dependent on him for support,
The

COVERAGE AND EXCLUSIONS CONTINUED.

5.

Domestic helpers, 6. Persons in the personal service of another, and 7. Workers who are paid by results as determined by the Secretary of Labor in appropriate regulations.

A. 1 GOVERNMENT EMPLOYEES
Sec.

2. Exemption- The provisions of this Rule shall not apply to the following persons if they qualify for exemption under the conditions se forth herein: Government employee whether employed by the Natural Government or any of its political subdivision, including those who are employed in government owned and/or controlled corporations.

A. 1 GOVERNMENT EMPLOYEES CONTINUED

The

rationale for their exclusion is that they are governed by the Civil Service Law, rules and regulations. It is now well entrenched that employees of government owned and/or controlled corporations w/out original charters are covered by the labor code while those with original charters are basically governed by the Civil Service law, rules and regulations

A. 2. MANAGERIAL EMPLOYEES
To

determine whether one is a managerial employee, it is best to see what the Rules Implementing the Labor Code provides. In Rule I, section 2, it states that the above provision do not also apply to: Managerial employees, if they meet all of the following conditions: 1. Their primary duty consists of the management of the establishment I which they are employed or of a department or sub-division thereof.

A. 2. MANAGERIAL EMPLOYEES CONTINUED

2. They customarily and regularly direct the work of two or more employees therein. y 3. they have the authority to hire or fore employees of lower rank; or their suggestions and recommendations as to hiring or firing and as to the promotion or any other change of status of other employees, are given particular weight. [Emphasis supplied]
y

A. 3. OTHER OFFICERS OR MEMBERS OF

THE MANAGERIAL STAFF

The determining factors to identify other officers and members of the managerial employees are: 1. The primary duty consists of the performance of work directly related to management policies of their employer; 2. They customarily and regularly exercise discretion and independent judgment; and 3. They also: (i) Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof; or

A. 3. OTHER OFFICERS OR MEMBERS OF

THE MANAGERIAL STAFF CONTINUED
(ii)

Execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (iii) Execute, under general supervision, special assignments and tasks; and (4) Who do not devote more than 20% of their hours worked ina work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1), (2) and (3) above.

FIELD PERSONNEL IS NOT ENTITILED TO

OVERTIME PAY EVEN IF HIS ACTUAL WORKING HOURS CAN BE DETERMINED

It is clear from article 82 that field personnel are among those exempted from some labor standards benefits in Title I of Book III or those pertaining to overtime, etc. The rationale is that the working hours cannot be determined.

A.4. DOMESTIC SERVANTS AND OTHER PERSONS

IN THE PERSONAL SERVICE OF ANOTHER
Domestic

servants and persons in the personal service of another if they perform such services in the employer's home which are usually necessary or desirable for the maintenance and enjoyment thereof, or minister to the personal comfort, convenience, or safety of the employer as well as the members of his employer's household.

A.5 WORKERS PAID BY RESULTS

Workers

who are paid by results, including those who are paid on piece-work, "takay," "pakiao" or task basis, and other non-time work if their output rates are in accordance with the standards prescribed under Section 8, Rule VII, Book Three of these regulations, or where such rates have been fixed by the Secretary of Labor and Employment in accordance with the aforesaid Section.

A.5 WORKERS PAID BY RESULTS

CONTINUATION

These workers are those: 1. Paid by results;

2. 3. 4. 5.

Paid on piece-work; Paid on takay; Paid on pakiao or pakyaw; and Paid on other non-time work.

A.5 WORKERS PAID BY RESULTS

ARTICLE

CONTINUATION

101. Payment by results. - (a) The Secretary of Labor and Employment shall regulate the payment of wages by results, including pakyao, piecework, and other non-time work, in order to ensure the payment of fair and reasonable wage rates, preferably through time and motion studies or in consultation with representatives of workers and employers organizations.

In the case of Makati Haberdashery, Inc Vs. NLRC in which the workers are paid on piece rate basis and are excluded from incentive leave pay and holiday pay, for the reason that they are not supervised while they are doing their job but they are also considered by the owner as regular employee. Certainly, a regular employee is one under the supervision of the employer thus in the case was reversed with respect to entitlement to holiday pay and service incentive leave.

Other kinds of employees that are excluded from the application of Night Shift Differential, Holiday Pay and Service Incentive Leave: o 1. Those who are engaged in contract basis,
o

2. Those who are engaged on purely commission basis, and 3. Those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.

A.6.

FIELD PERSONNEL

Another group of employees excluded from the application of labor standards benefits is the field personnel.

Field personnel shall refer to nonagricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.

In the old case of San Miguel brewery, Inc. vs. Democratic Labor Organization, salesmen claimed overtime and night shift payment among others, their reason is because the worked for more than 8 hours. The 8 hour daily work day rule has no application to field employees. The philosophy behind this exemption lies in his earnings in the form of commission based on the gross receipts of the day. His participation depends upon his industry so that the more hours he employs in work the greater are his gross returns and the higher his commission.

A.7.

MEMBERS OF THE FAMILY OF THE

EMPLOYER

Article 82 states that among those not entitled to the benefits of Title I Book III of the Labor Code are members of the employers family and must be dependent. It may thus refer not only to the real immediate members of the family of the employer but also to those who are considered as family members on its loose sense, that is, those who are living with the employer and dependent on him for support.

B. NORMAL HOURS OF WORK

OVERVIEW OF SELECTED PRINCIPLES
o

Maximum period within which the employee must be required to work is eight (8) hours. It does not mean that companies cannot implement work shift less than 8 hours since part-time work is allowed. Employer can always regulate the hours of work subject to certain limitations as an exercise of its management prerogative. Any work in excess of 8 hours must be paid overtime pay.

ARTICLE 83. Normal hours of work. The normal hours of work of any employee shall not exceed eight (8) hours a day.
Health personnel in cities and municipalities with a population of at least one million (1,000,000) or in hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day.

For purposes of this Article, health personnel shall include resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. Rationale of the law: In the case of Manila Terminal Company, Inc. vs. The Court of Industrial Relations et al the employer alleged that since the union entered into an agreement for a 12- hour work day at a specific pay, it is estopped from claiming the overtime pay. The Supreme Court disregarded the argument emphasizing the importance of compliance of the 8 hour labor law ratiocinating that the law was designed not only to safeguard the health and welfare of the laborer or employee but also to minimize unemployment by forcing employees to utilize different shifts in jobs where more than 8 hours of operation is necessary.

B.2.

EMPLOYER MAY REDUCE THE EIGHTHOUR WORK

The Bureau of Working Conditions of the DOLE issued a bulletin stating that a reduction of the number of regular working days is valid where the arrangement is resorted by the employer to prevent serious losses due to causes beyond his control such as when there is a substantial slump in the demand for his goods and services when there is lack of raw materials.

DEPARTMENT ADVISORY NO. 2 SERIES OF 2009

The advisory was issued to assist and guide employers and employees in the implementation of various flexible work arrangements. This advisory provides flexibility in the work hours in the establishment by proposing the following approaches: 1. Compressed Workweek refers to one where the normal workweek is reduced to less than (6) days but the total number of work hours of 48 hours per week shall remain. The normal work day is increased to more than eight

hours but not to exceed twelve hours, without corresponding overtime premium. 2. Reduction of Workdays refers to one where the normal workdays per week are reduced but should not last for more than six months. y3. Rotation of Workers refers to one where the employees are rotated to alternately provided work within a workweek

Forced Leave refers to one where the employees are required to go on leave for several days or weeks utilizing their leave credits if there are any. 5. Broken-time schedule refers to one where the work schedule is not continuous but the work hours within the day or week remain. o 6. Flexi-holidays schedule refers to one where the employees agree to avail of the holidays at some other days provided there is no diminution of existing benefits as a result of such arrangement.

4.

B.3

COMPRESSED WORKWEEK (CWW)

The idea came out to compress the workdays in a week from six days to five thereby eliminating the Saturday work. But the effect is an increased work hours from Monday to Friday where such excess hours are not compensable under overtime rules. The idea behind compressed workweek is best elucidated in Department Order No. 21 in 1990.

DEPARTMENT ORDER IMPLEMENTING CWW (D.O. NO. 02, SERIES OF 2004) PURPOSE AND COVERAGE It was intended to apply to all establishments except those in the following: 1. Construction industry, 2. Health services, 3. Occupations requiring heavy manual labor 4. Occupations or workplaces in which workers are exposed to airborne contaminants, human carcinogens, substances, chemicals or noise that exceed the threshold limit values or tolerance levels for an eight-hour workday.

CWW GUIDELINES
1.

2.

3.

The CWW scheme is undertaken as a result of an express and voluntary agreement of majority of the covered employees of their duly authorized representatives. In firms using substances, chemicals and processes or operating under conditions where there are substances or chemicals that may pose hazards to the employees health and safety must have a certification from an accredited health and safety committee. The employer shall notify DOLE, of the adoption of the CWW scheme.

RECKONING OF WORKING PERIOD

1.

Work day. It pertains to twenty-four consecutive hours commencing form the time the employee regularly starts to work.

2.

Workweek. Its consists of 168 consecutive hours (24 x 7 days) beginning at the same hour and on same calendar day each calendar week.

FLEXIBLE WORK SCHEDULE UNDER THE SOLO PARENTS ACT.

The employer shall provide for a flexible work schedule for solo parents. Provided, that the same shall not effect individual and company productivity and that any employer may request exemption from the DOLE on certain meritorious grounds. In the case of employees in the government service flexible working hours will be subject to the discretion of the head of the agency. In the adoption of the flexi-time, the core working hours shall be prescribed taking into consideration the needs of the service.

B.4. BROKEN HOURS B.4. In implementing the normal 8 working hours, it must be understood that the law does not mean straight service for such period. The eight hours may be broken into any variation as long as the total of eight hours is accomplished within one work day.

B.5.

WORK IN SHIFTS

There are establishments where employees are required to attend operations for 24 hours. In businesses like memorial servicing, certain employees work in shift to cover twenty-four a day. But it is achieved by shifting three (3) employees to man the funeral receiving section. Work beyond the regular working hours in each shift shall be compensated for the overtime duty.

B.6. REDUCTION OF WORKDAYS Reduction of workdays is part of management prerogative and is valid as long as it is within the bounds of the law. As opposed to compressed workweek, the workdays are not compressed but reduced. The reduction of the number of regular working days is valid where the arrangement is resorted by the employer to prevent serious losses due to causes beyond his control such as when there is a substantial slump in the demand for his goods and services when there is lack of raw materials.

B.7.PART-TIME WORKERS
It does not mean that companies cannot implement work shift less than 8 hours since part-time work is allowed. In one case, the employer argued that the designation of part-time workers is a management prerogative since it is consistent with is operational needs. The Supreme Court disagreed by sustaining the full-time status of the workers by stating hat while it may be conceded that management is in the best position to know its operational needs, the exercise of management prerogative cannot be utilized to circumvent the law and public policy on labor and social justice.

Situation Contemplated

Hours of work and exceptions

shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day.

Health personnel in cities and municipalities with a population of at least one million (1,000,000) hospitals and clinics with a bed capacity of at least one hundred (100)

B.9. TERMINOLOGIES IN ARTICLE 83 OF THE LABOR CODE

Health Personnel shall include resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. Hospitals and clinics shall mean a place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment and care of individuals suffering from illness, disease, injury, deformity, or in need of obstetrical or other medical and nursing care.

B.10. BUREAU OF MEDICAL SERVICES

DETERMINES BED CAPACITY AND POPULATION

The actual bed capacity of the hospital or clinic at the time of such determination shall be considered, regardless of the actual or bed occupancy. The bed capacity of hospital or clinic as determined by the Bureau of Medical Services pursuant to Republic Act. No. 4226, otherwise known as the Hospital Licensure Act, shall prima facie be considered as the actual bed capacity of such hospital or clinic.

B.11.

NATIONAL STATISTICS OFFICE (NSO)

DETERMINES SIZE POPULATION

The size of the population of the city or municipality shall be determined from the latest official census issued by the Bureau of the Census and Statistics now known as NSO.
B.12.

REGULAR WORKING HOURS OF HOSPITAL AND CLINIC EMPLOYEES

Shall not be more than 8 hours in any one day or more than 40 hours in any one week. A day shall mean a work day of 24 consecutive hours beginning at the same time each calendar year. A week shall mean the work of 168 consecutive hours, or seven consecutive 24-hour work days.

B.13. REGULAR WORKING DAYS OF HOSPITAL AND CLINIC PERSONNEL The regular working days of covered employees shall not be more than five days in a work week. The work week may begin at any hour and on any day, including Saturday or Sunday, designated by the employer. B.14. OVERTIME WORK OF HOSPITAL AND CLINIC PERSONNEL
Any hospital and clinic employee may be scheduled to work for more than 5 days or 40 hours a week provided that the employee is paid for the overtime work an additional compensation equivalent to his regular wage plus at least 30% thereof, subject to the pertinent provisions of the Labor Code on the payment of additional compensation on work performed.

B.15. HOURS WORKED OF HOSPITAL AND CLINIC PERSONNEL

In determining the compensable hours of work of hospital and clinic personnel the pertinent provisions of Rule 1 of Book III of the Rules to Implement the Labor Code shall apply.
B.16. ADDITIONAL COMPENSATION OF HOSPITAL AND CLINIC PERSONNEL

Hospital and clinic personnel, except government employed, shall be entitled to and additional compensation for work performed on regular and special holidays and rest days as provided by Book III of the Labor Code. Such employees are also entitled to overtime pay.

B.17.1 WHO ARE PUBLIC HEALTH WORKERS Public health workers are persons engaged in health and health-related works. These cover employees in any of the following: A. Any government entity whose primary function according to its legal mandates the operation of hospitals and other similar facilities and places involving the rendering of health services to the public. B. Offices attached to agencies whose primary function according to its legal mandates involves provision, financing or regulation of health services.

B.17.3 HOURS WORKED; INCLUSION Hours worked shall include: A. All the time during which a public health worker is requires to be on active duty or at the prescribed workplace.
B.

All the time during which a Public Health Worker is required or permitted to work; provided, that during times that a public health worker is ON CALL status as defined in these Rules , he shall be entitled to ON CALL pay equivalent to 50% of his regular wage.

B.17.4OVERTIME WORK FOR PUBLIC HEALTH WORKERS

Rates for authorized service rendered in excess of the days scheduled normal work:
A.

Work rendered in excess on the normal work period: 125% of base rate, Work rendered during a rest day: 150% of base rate and Work rendered during a holiday: 150% of base rate

B.

C.

B.17.5 REST DAY OF PUBLIC HEALTH WORKERS Rest day is any day within the week when the employee is scheduled not to work provided the employee shall have rendered 40 hours work within the week.

B.18.6 NIGHT SHIFT DIFFERENTIAL PAY OF PUBLIC HEALTH WORKERS

Rates of night shift differential: A. A night shift differential pay of 10% of his/her regular wage plus of each hour work performed during the night shifts customarily adopted by hospitals/health institutions, B. An entitlement to his/her regular wage schedule plus the regular overtime rate and additional amount of 10% of such overtime rate for each hour of work performed between 10pm to 6am.

B.18 IT IS A MANAGEMENT PREROGATIVE TO CHANGE WORKING HOURS

Management prerogatives simply pertain to the rights of the management to make business decisions. They may affect the workers but as long as theses decisions were made in good faith and not for the purpose of circumventing the laws or the provisions of the Labor Code then the courts shall respect them.

C. HOURS WORKED Hours worked shall include : A. all time during which an employee is required to be on duty or to be at a prescribed workplace; and B. all time during which an employee is suffered or permitted to work.

C.1. PRINCIPLES IN DETERMINING HOURS

WORKED
A.

B.

C.

All hours worked the employer required regardless if it is spent on productive labor or involve physical or mental exertion. It is enough that the employee stops working, rest completely and may leave his work place, to go elsewhere, whether within or outside the premises of his workplace. If the work performed was necessary, all time spent for such work shall be considered as hours worked, if the work was with the knowledge of his employer or immediate supervisor.

C.1. PRINCIPLES IN DETERMINING HOURS

WORKED
CONTINUED

D. The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either if the imminence of the presumption of work requires the employees presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employees own interest.

C.2. COFFEE BREAKS AND REST PERIOD OF

SHORT DURATION

The Omnibus rules Implementing the Labor Code provides that rest periods or coffee breaks running from 5 to 20 minutes shall be considered as compensable working time.

C.3. WAITING TIME AND WORKING WHILE ON

CALL

Waiting time. (a) Waiting time spent by an employee shall be considered as working time if waiting is an integral part of his work or the employee is required or engaged by the employer to wait. (b) An employee who is required to remain on call in the employer's premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose shall be considered as working while on call. An employee who is not required to leave word at his home or with company officials where he may be reached is not working while on call.

C.4. TRAVEL TIME In the case of Caaya vs. The Hon. Voluntary Arbitrator Jorge M. Manalo, the court of appeals held that CBA has interpreted to them the law and its implementing rules on what should be excluded from the hours worked. They were hereby included since the CBA stipulated that the time spent for transportation and waiting period shall not be counted as time worked, it being contemplated that only actual time work shall be the basis of computing compensation of wages.

C.4.1 OVERNIGHT TRAVEL THAT CUTS ACROSS EMPLOYEES WORKDAY Travel away from home is clearly working time when it cuts across the employees workday. The employee is simply substituting travel for other duties. As an enforcement policy, the Department of Labor and employment does not consider as working time that time spent in travel away from home outside regular working hours as a passenger on an airplane, train, boat, bus or automobile.

C.4.2. WORKING WHILE TRAVELLING Any work which an employee is required to perform while travelling must be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer.

C.5. PRELIMINARY AND POSTLIMINARY

ACTIVITIES

It is well-settled though that preliminary and postliminary activities are considered working time, were such activities are controlled or required by the employer and are pursued necessarily and primarily for the benefit of the employer.

C.6. ATTENDANCE IN LECTURES, MEETINGS

AND TRAINING PROGRAMS

Lectures, meetings, training programs. Attendance at lectures, meetings, training programs, and other similar activities shall not be counted as working time if all of the following conditions are met: (a) Attendance is outside of the employee's regular working hours; (b) Attendance is in fact voluntary; and (c) The employee does not perform any productive work during such attendance.

In a decided case involved the Assistant Chief Security Officer of the corporation, acting for the Chief Security Officer who issued a Memorandum directing the security guards to report to duty 2 hours in advance of the usual time for guard work. The Supreme Court disagreed stating that when the companys official required employee had to comply those hours become compensable.

C.7. ATTENDANCE IN CBA NEGOTIATIONS AND GRIEVANCE MEETINGS.

The time spent by the officers or representatives of the union in the negotiations with management for collective bargaining purposes is not compensable working time, except: 1. When there is a company policy or practice making it compensable; 2. When there is a CBA stipulation treating it is as compensable; 3. When the CBA negotiations are conducted during working hours, with the agreement of the employer to treat it as compensable working time.

C.8.

TIME SPENT BY EMPLOYEES IN HEARINGS

OR CONFERENCES IN CASES FILED AGAINST THE EMPLOYER IS NOT COMPENSABLE.

The rule governing the relation between labor and capital or management and employee of fair days wage for a fair days labor is applicable in this case. Laborers who voluntarily absent themselves from work to attend the hearing of a case in which they seek to prove and establish their demands against the company, the legality and propriety of which demands is not yet known, should lose their pay during the period of such absence from work.

C.9. ATTENDANCE OR PARTICIPATION IN STRIKES

OR PICKETS

Even if the strike is legal, strikers may not collect their wages during the days they did not go to work and the are not entitled to compensation. If there is no work performed by the employee there is no work performed by the employee there can be no wage or pay, less of course, the laborer was able, willing and ready to work but was illegally locked out, dismissed or suspended. It is hardly fair or just for an employee or laborer to fight or instigate his employer on the employers time

C.10. NO BACK PAY SHALL BE AWARDED FOR

TIME SPENT ON STRIKE

The general rule is that time spent in attending or participating in strikes or pickets is not compensable working time. The exception is when there is a strike duration pay provided under the company policy, practice or CBA. In case of employees who struck as voluntary act of protest against what they considered unfair labor practice of the company, the stoppage of their work was not direct consequence of the companys unfair labor practice. Hence their economic loss should not be shifted to the employer.

C.11. WORKING TIME OF SEA BASED WORKERS

OR SEAMEN

When the work is not continuous, the time during which the laborer is not working and can leave his working place and can rest completely, shall not be counted, is applicable to seamen. This is so considering that the seamen although not required to work and is resting cannot leave his working place, the vessel.

C.12. SEMESTRAL BREAK IS JUST AN INTERRUPTION OF WORK OF FULL-TIME TEACHERS HENCE,

COMPENSABLE

Full-time professors, instructors and teachers in the college level teach for a normal duration of ten (10) months in a school year, divided into 2 semesters of 5 months each , excluding the 2 months summer vacation. Semestral breaks may be considered as hours worked under the Rules implementing the Labor Code and that regular professors and teachers are entitled to ECOLA during the semestral breaks, their absence from work not being of their own will.

C.13.1 BROWN OUT NOT EXCEEDING 20

MINUTES

Shall be treated as hours worked or compensable hours whether used productively or not. They should be paid on such 20 minutes of brownouts C.13.2 RULE IF MORE THAN 20 MINUTES If they last more than 20 minutes, the time may not be treated as hours worked if: 1. The employee can leave their workplace or go elsewhere whether within or without the work premises. 2. The employees can use the time effectively for their own interest.

C.14. BURDEN OF PROVING THE HOURS

WORKED

When an employer alleges that his employee works less than the normal hours of employment as provided for in the law, he bears the burden of proving his allegation with clear and satisfactory evidence.

D. MEAL PERIODS ARTICLE 85. Meal periods. - Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals.

SECTION 7. Meal and Rest Periods. Every employer shall give his employees, regardless of sex, not less than one (1) hour time-off for regular meals, except in the following cases when a meal period of not less than twenty (20) minutes may be given by the employer provided that such shorter meal period is credited as compensable hours worked of the employee: (a) Where the work is non-manual work in nature or does not involve strenuous physical exertion; (b) Where the establishment regularly operates not less than sixteen (16) hours a day;

 (c)

In case of actual or impending emergencies or there is urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer; and (d) Where the work is necessary to prevent serious loss of perishable goods.

D.1. EMPLOYEES MAY DO ANYTHING THEY

WANT DURING MEAL BREAK

An employee is not required to work during his lunch break. He may do anything he wants during one hour time-off. If he is required to work during his mealtime, he should be compensated there for. In a case where the mechanics were required to stand by for emergency work during their meal period such that when they happened to be not available when called they were reprimanded by the leadman, the Supreme court held that stand-by hours shall be compensable.

D.2. COFFEE BREAK IS COMPENSABLE Rest periods or coffee breaks running from 5 to 20 minutes shall be considered as compensable working time. Rest periods may also include toe so-called cancer break or yosi break when employees would sometimes smoke together with smoking buddies. Some include cigarette breaks in the agreement.

D.3. EMPLOYEE IS NOT PROHIBITED FROM LEAVING

THE WORK PREMISES TO HAVE MEAL BREAK

The employee is not required to take his meals inside company premises for the one hour that he is entitled to. In one case the company physician went home during his meal break and due to his absence in the emergency he was suspended. The Supreme court disagreed with the suspension with the reason that employees are not prohibited from going out to their posts on the time. Employees act therefore of going home to take his dinner does not constitute abandonment.

D.4. WHAT CONSTITUTES COMPENSABLE WORK IS A

QUESTION OF FACT

It will be notes under the law that an employee may spend for resting and during which he may leave the spot or place of work though not the premises of his employer, is not counted as working time only where the work is broken or is not continuous. The determination as to whether work is continuous or is not is mainly one of fact which the court shall not review as long as the same is supported by evidence.

D.5. AN EMPLOYEE WHO WORK FOR TWO

CONSECUTIVE SHIFTS SHALL BE PAID HIS LUNCH BREAKS

As held by the Supreme court is case where an employee was held to work continuously for two consecutive shifts, while it may be correct to say that it is well-nigh impossible for an employee to work while he is eating can be segregated or deducted from his work , if the same is continuous and the employee can leave his working place and rest completely. In effect, if he works straight, his compensable hours worked should be 16 hours and not 14 since meal period shall be considered compensable.

E. NIGHT SHIFT DIFFERENTIAL ARTICLE 86. Night shift differential. - Every employee shall be paid a night shift differential of not less than ten percent (10%) of his regular wage for each hour of work performed between ten oclock in the evening and six oclock in the morning. Additional compensation for nighttime work is founded on public policy.

E.1. TO WHOM NIGHT-SHIFT DIFFERENTIAL IS

NOT APPLICABLE
SECTION

1. Coverage. This Rule shall apply to all employees except: (a) Those of the government and any of its political subdivisions, including governmentowned and/or controlled corporations; (b) Those of retail and service establishments regularly employing not more than five (5) workers; (c) Domestic helpers and persons in the personal service of another;

 (d)

Managerial employees as defined in Book Three of this Code; (e) Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.

E.2. NIGHT-SHIFT DIFFERENTIAL RATE IS AT LEAST 10% An employee shall be paid night shift differential of no less than 10% of his regular wage for each hour of work performed between 10 oclock in the evening and 6 oclock in the morning. In one case decided by the Supreme Court, the CBA of the company and union provided for the rates of 15% and 20% as the case may be. The stipulation is valid for as long as it is not intended to circumvent the provisions of the law and it is not contrary to public policy and good morals.

E.3. NIGHT-SHIFT DIFFERENTIAL ON TOP OF OVERTIME RATE, REST DAY, AND HOLIDAY
The

situation contemplated in this case is that an employee works at a time he is entitled to both night-shift differential pay and overtime. It is possible only during the time of 10:00p.m. to 6a.m., the night differential period. Hence , he shall be paid also his night-shift differential work based on his overtime hourly rate. Since such time is covered by the night-shift pay, he shall be paid an additional 10% based on his overtime rate.

Regular Work Day

Basic Daily Wage (BDW) Php 382.00 Overtime rate (OT) 125% of BDW Regular Night-Shift Differential 10% of BDW Overtime NightShift Rate 10% of OT Rate

Special Day (SD)

130% of Php 382 130% of SD BDW 10% of SD BDW 10% SD OT Rate

Rest Day (RD)

130% of Php 382 130% of RD BDW 10% of RD BDW 10% of RD OT

Special Day at same time Rest Day (SDRD)

150% of Php382 130% of SDRD BDW 10% of SDRD BDW 10% of SDRD OT Rate

Regular Holiday (RH)

200% of BDW 130% of RH BDW 10% of RH BDW 10% of RH OT Rate

F. OVERTIME WORK
ARTICLE

87. Overtime work. - Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twenty-five percent (25%) thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof.

88. Undertime not offset by overtime. Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required in this Chapter. ARTICLE 89. Emergency overtime work. - Any employee may be required by the employer to perform overtime work in any of the following cases: (a) When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive;
ARTICLE

 (b)

When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; (c) When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature; (d) When the work is necessary to prevent loss or damage to perishable goods; and PRESIDENTIAL DECREE No. 442 T

 (e)

Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. Any employee required to render overtime work under this Article shall be paid the additional compensation required in this Chapter.

F.1. COMPUTATION OF OVERTIME WORK

SECTION

8. Overtime pay. Any employee covered by this Rule who is permitted or required to work beyond eight (8) hours on ordinary working days shall be paid an additional compensation for the overtime work in the amount equivalent to his regular wage plus at least twenty-five percent (25%) thereof.

F.3.1. OVERTIME WORK ON ORDINARY

WORKING DAY
Work

may be performed beyond eight hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage thus at least 50% thereof. Ordinary regular working day means a work is not a special day, rest day or regular holiday.

F.3.2. OVERTIME WORK ON REST DAYS AND SPECIAL DAYS

An

employee who is permitted or suffered to work on special holidays or on his designated rest days not falling on regular holidays, shall be paid with an additional compensation as premium pay of not less than 30% of his regular wage. For work performed in excess of 8 hours on special holidays and rest days not falling on regular days, an employee shall be paid an additional compensation for the overtime work equivalent to his rate for the first eight hours on a special holiday or rest day plus at least 30% thereof.

F.3.3. OVERTIME PAY FOR REGULAR HOLIDAY

WORK
For

work performed in excess of eight hours on a regular holiday, an employee shall be paid an additional compensation for the overtime work equivalent to his rate for the first eight hours on such holiday work plus at least 30% thereof.

F.3.4. OVERTIME WORK FOR REGULAR

HOLIDAY FALLING ON REST DAY
Where

the regular holiday work exceeding eight hours falls on the scheduled rest day of the employee, he shall be paid an additional compensation for the overtime work equivalent to his regular holiday-rest day for the first 8 hours plus 30% thereof. The regular holiday rest day rate of an employee shall consist of 200% of his regular daily wage rate plus 30% thereof.

F.3.5. OVERTIME WORK OF HOSPITAL AND

CLINIC PERSONNEL
where

the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day.

F.4. PREMIUM PAY VS. OVERTIME PAY

Premium

pay refers to the additional compensation for work performed within 8 hours on nonwork days , such as rest days and special days. While overtime pay refers to additional compensation for work performed beyonf 8 hours a day.

 This

benefit applies to employees except: Government employees whether employed by the National Government or any of its political subdivision, including those employed in government-owned and/or controlled corporations; (b) Managerial employees, if they meet all of the following conditions: (1) Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof. (2) They customarily and regularly direct the work of two or more employees therein. (3) They have the authority to hire or fire employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight.

(c) Officers or members of a managerial staff if they perform the following duties and responsibilities: (1) The primary duty consists of the performance of work directly related to management policies of their employer; (2) Customarily and regularly exercise discretion and independent judgment; and (3) (i) Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof; or (ii) execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (iii) execute, under general supervision, special assignments and tasks; and (4) Who do not devote more than 20 percent of their hours worked in a work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1), (2) and (3) above.

(d) Domestic servants and persons in the personal service of another if they perform such services in the employer's home which are usually necessary or desirable for the maintenance and enjoyment thereof, or minister to the personal comfort, convenience, or safety of the employer as well as the members of his employer's household. (e) Workers who are paid by results, including those who are paid on piece-work, "takay," "pakiao" or task basis, and other non-time work if their output rates are in accordance with the standards prescribed under Section 8, Rule VII, Book Three of these regulations, or where such rates have been fixed by the Secretary of Labor and Employment in accordance with the aforesaid Section. (f) Non-agricultural field personnel if they regularly perform their duties away from the principal or branch office or place of business of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty

F.5. PARTIES MAY STIPULATE ON OVERTIME

RATE
Generally,

the premium pay for work performed on rest days, special days, or regular holidays is included as part of the regular rate of the employee in the computation of overtime pay for overtime work rendered on said days, especially if the employer pays only the minimum overtime rates prescribed by law. The employees and employer, however, may stipulate in their collective agreement the payment for overtime work at rates higher than those provided by law.

F.6. OVERTIME WORK OF TEACHERS IN

PRIVATE SCHOOLS
Any

work in excess of the normal or regular teaching load shall be considered as overload. Overload partakes of the nature of temporary extra assignment and compensation, therefore, shall be considered as overload honorarium if performed within the 8-hour work period and does form part of the regular basic pay.

F.8. OVERTIME WORK FOR SEAMEN

The

correct criterion in determining whether or not sailors are entitled to overtime pay is not whether they actually rendered service in excess of said number of hours. In the Stolt-Nielsen case, a sailor was repatriated for refusing to obey the order of his officer. He claimed non-payment of his overtime pay but he is not entitled to overtime pay since the award for overtime was for the remaining 6 months and 3 days for his contract at which time he was no longer rendering services as he had been already repatriated.

F.9. PROOF OF OVERTIME WORK

Overtime

work is the basis of overtime pay. Hence he who claims for payment of overtime pay must show proof of overtime work. When allegations made by the claiming workers for overtime pay is not controverted by the employe, they may amount to admissions such that although there is no proof of such claim, it is as if the fact of work exists.

F.10. BURDEN OF PROOF OF PAYMENT OF

OVERTIME WORK RESTS ON THE EMPLOYER

The employer has the burden of proving that the rate of pay given to the employees is in accordance with the minimum fixed by the law and that he paid thirteenth month pay, service incentive leave pay and other monetary claims. It has been clearly consistent as a rule , one who pleads payment has the burden of proving it.

F.11. ADMISSION BY SILENCE OF LIABILITY FOR EMPLOYEES CLAIMS

In

a case where the company did not even take an effort to deny or refute employees claim that they are not paid their overtime pay, holiday pa and 13th month pay, their silence is deemed admission of the same. Section of Rule 8 of the Rules of Court, which supplements the NLRC Rules, provides that an allegation not specifically denied is deemed admitted.

F.12. EXCESS PAYMENT OF SALARY DOES NOT

OFFSET OVERTIME LIABILITY OF EMPLOYER
In

the case of Damasco vs. NLRC, even assuming that Damasco received a wage which is higher than the minimum provided by law, it does not follow that any additional compensation due her can be offset by her pay in excess of the minimum, in the absence of an express agreement to that effect. Such arrangement, if any, must appear in the manner required by law on how overtime compensation must be determined.

F.13. NO WAGE DISTORTION FOR PAYMENT OF

OVERTIME
In

one case, the Supreme Court did not agree that the overtime pay would result in wage distortion. Thus the Court did not find merits when the employee contends that the agreed salary rate in the employment contract should be deemed to cover overtime pay, otherwise serious distortions in wages would result since a mere company guard will be receiving a salary much more than salaries of other employees who are in much higher rank and position than him in ther company.

F.14. THERE IS NO DIMINUTION IN PAY OF THE FIXED

OVERTIME PAY IS REMOVED FOR BEING MERE SUPPLEMENTAL BENEFIT
In

the case of Aguanza vs. Asian terminal the Supreme court held that the fixed overtime of 16 hours, out-of-port allowance and meal allowance and meal allowance previously granted to the employee were merely supplements or employment benefits given on condition that is his assignment was out-of-port. Since he was expected to be working in Bataan due to the transfer of operation.

F.15. ERRONEOUS PAYMENT OF OVERTIME WORK

DOES NOT RESULT IN DEMANDABLE RIGHT TO THE RECIPIENT.
That

the employee was paid overtime benefits does not automatically and necessarily denote that the is entitled to such benefits. Art. 82 of the Labor Code specifically delineates who are entitled to the overtime premiums and service incentive leave pay provided under Art. 87, 93, 94 and 95 of the Labor Code and the exemptions thereto.

F.16. IN GENERAL, RIGHT TO OVERTIME PAY IS

NOT SUBJECT TO A WAIVER
The

employer has the power to establish contractual terms. While rights may be waived, the same must not be contrary to the law, public order, public policy, morals or good customs or prejudicial to third person with a right recognized by law. The right to claim overtime pay is not subject to a waiver. Such right is governed by law and not merely by the agreement of the parties.

F.17. PAYMENT OF OVERTIME FOR 12-HOUR NORMAL

WORK PER DAY IS NOT UNJUST ENRICHMENT ON THE PART OF THE WORKERS
In

one case, it was stipulated that the employees shall have twelve-hour normal work per day. It was ruled by the court that the employees should be paid for the four hours overtime work each day. On appeal, the employer argued that the award of overtime pay was plain and simple unjust enrichment and that such award sanctioned and approved the grant of payment which will result in double payment for the overtime work rendered by said employee.

F.18. BUT WAIVER IS VALID IF SHOWN TO BE MADE

IN CONSIDERATION OF CERTAIN VALUABLE PRIVILEGES.
In

the case of Meralco Workers Union vs. Maniula Electric Co., if the waiver is done in exchange for and in consideration of certain valuable priviledges, among them that of being given tips when doing overtime work, there being no proof that the velue of said privileges did not compensate for such work, such waiver may be considered valid.

F.19. IN A VALID COMPRESSED WORK WEEK (CWW) THERE IS NO OVERTIME PAY

If

it so validly agreed upon, there is no need for the employer to pay the overtime work for as long as the requisites for valid CWW are complied with. Among such requirements are the approval of the DOLE, voluntary agreement of the employees, no diminution in pay and benefits, etc.

G. UNDERTIME
ARTICLE

88. Undertime not offset by overtime. - Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required in this Chapter.

G.1. RATIONALE OF THE PROHIBITION ON

OFFSETTING
The

rate of pay given to an employee in an overtime work and for normal hours of work is different. Hence, offsetting is not proper and is unjust. Where a worker incurs undertime hours during his regular daily work, said undertime hours should not be offset against overtime hours. If it were otherwise, the unfairness will be evident from the fact that the undertime hours represent only the employees hourly rate of pay while the overtime hours reflect both the employees hourly rate of pay.

G.2. OFFSETTING OF LEAVE AGAINST

OVERTIME PAY
It

is when the total overtime work rendered by the employee for the week is eight hours. Instead of paying the employee at overtime rate, the employer asks him to take a leave for one day to offset the overtime of eight hours. Article 88 prohibits this practice based on hourfor-hour computation, the employee is deprived of his overtime premium.

H. EMERGENCY OVERTIME WORK

ARTICLE

89. Emergency overtime work. - Any employee may be required by the employer to perform overtime work in any of the following cases:
When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive;

(a)

 (b)

When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; (c) When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature;

 (d)

When the work is necessary to prevent loss or damage to perishable goods; and

(e) Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. Any employee required to render overtime work under this Article shall be paid the additional compensation required in this Chapter.

H.1. REFUSAL TO RENDER OVERTIME WORK

Provided

that all other requisites for a lawful order are present, refusal to comply by the employees may subject him to the penalty of dismissal under Article 282 of the Labor Code as amended. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work

H.2. OVERTIME BOYCOTT IS A FORM OF

ILLEGAL STRIKE
The

overtime boycott and work slowdown staged by the employees were considered a form of illegal strike, the same being in violation of the CBA which prohibits the union or employees during the existence of the CBA to stage a strike or engage slowdown or interruption of work.

I. COMPUTATION OF ADDITIONAL COMPENSATION

ARTICLE

90. Computation of additional compensation. - For purposes of computing overtime and other additional remuneration as required by this Chapter, the regular wage of an employee shall include the cash wage only, without deduction on account of facilities provided by the employer.

I.1.NON-DIMINUTION OF BENEFITS 100. Prohibition against elimination or diminution of benefits. - Nothing in this Book shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of this Code. ARTICLE 127. Non-diminution of benefits. - No wage order issued by any regional board shall provide for wage rates lower than the statutory minimum wage rates prescribed by Congress. (As amended by Republic Act No. 6727, June 9, 1989).
ARTICLE

CHAPTER TWO: REST PERIODS A. RIGHT TO WEEKLY REST DAY

ARTICLE

91. Right to weekly rest day. - (a) It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than twentyfour (24) consecutive hours after every six (6) consecutive normal work days.

 (b)

The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Secretary of Labor and Employment may provide. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds.

A.1. APPLICATION OF WEEKLY REST PERIOD

The

provision on weekly rest period shall apply to all employers whether operating for profit or not, including public utilities operated by private persons. A.2. REPEAL OF BLUE SUNDAY LAW

The

present law provides that all establishments and enterprises may operate or open for business on Sundays and holidays provided that the employees are given the weekly rest day and the benefits as provided in the implementing rules

A.3. AT LEAST 24 HOURS OF REST DAY

Every

employer shall give his employees a rest period of not less than twenty-four consecutive hours after every 6 consecutive normal work days. This does not mean that those companies that approved tom implement the Compressed work week and allowed employees to work for only five days in a week cannot have 24 consecutive of rest day per week.

A.4. EMPLOYEE MAY CHOOSE REST DAY DUE

TO RELIGIOUS REASONS
Article

91. (b) The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Secretary of Labor and Employment may provide. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds.

A.5. DETERMINING THE WEEKLY REST DAY Where the weekly rest is given to all employees simultaneously, the employer shall make known such rest period by means of a written notice posted conspicuously in the workplace at least one week before it becomes effective.
A.6. REST DAY CANNOT BE OFFSET BY WORK ON
REGULAR WORKDAYS
Consistent

with the rationale on article 88, rest day cannot be offset by regular workdays. Ordinary rate is applied on ordinary workday while premium rate is given on employees rest day. The disparity would work to the disadvantage of the employee if offsetting would be allowed.

A.7. EMPLOYERS ACT OF PAYING THE DAILY

EMPLOYEES FOR HOLIDAYS EVEN IF IT FALLS ON REST DAY IS BINDING
The

Supreme Court disagreed holding that if the terms of a CBA are clear and have no doubt upon the intention of the contracting parties, the literal meaning thereof shall prevail. That is settled. As such, the daily-paid employees must be paid their regular salaries on the holidays which are so declared by the national government, regardless of whether they fall on rest days.

A.8. CASE WHERE AN EMPLOYEE LABELED AS MONTHLY-PAID IS ENTITLED TO REST DAY PAY IF
NOT PAID DURING HIS ABSENCE
In

the case of J marketing Corp. vs. Taran, the company argued that being a monthly paid employee, complainant is not entitled to rest day pay. Thus every time he is absent, he will not be paid for the day. He is for all intents and purposes, a daily paid employee. As such, he has to be paid rest day pay when he works on his rest days. With employee's categorical assertion that he worked during his rest day especially in the month of December, the Labor arbiter did not err in awarding him rest day pay.

B. WHEN EMPLOYER MAY REQUIRE WORK ON A

REST DAY
ARTICLE

92. When employer may require work on a rest day. - The employer may require his employees to work on any day: (a) In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life and property, or imminent danger to public safety;

 (b)

In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which the employer would otherwise suffer; (c) In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures; (d) To prevent loss or damage to perishable goods;

 (e)

Where the nature of the work requires continuous operations and the stoppage of work may result in irreparable injury or loss to the employer; and (f) Under other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment.

B.1. EMPLOYEE CANNOT BE COMPELLED TO RENDER REST DAY WORK; EXCEPTIONS

No

employee shall be required against his will to work hi scheduled rest day except under circumstances provided in the implementing rules: Provided, however, that where an employee volunteers to work on his rest day under other circumstances, he shall express such desire in writing, subject to the provisions of Section 7 of the rules regarding additional compensation.

B.2. COMPENSATION FOR REST DAY, SUNDAY OR HOLIDAY WORK

ARTICLE

93. Compensation for rest day, Sunday or holiday work. - (a) Where an employee is made or permitted to work on his scheduled rest day, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage. An employee shall be entitled to such additional compensation for work performed on Sunday only when it is his established rest day. (b) When the nature of the work of the employee is such that he has no regular workdays and no regular rest days can be scheduled, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage for work performed on Sundays and holidays.

 (c)

Work performed on any special holiday shall be paid an additional compensation of at least thirty percent (30%) of the regular wage of the employee. Where such holiday work falls on the employees scheduled rest day, he shall be entitled to an additional compensation of at least fifty per cent (50%) of his regular wage. (d) Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate.

B.3. TO WHOM REST DAY PAY IS APPLICABLE (a) Government employees whether employed by the National Government or any of its political subdivision, including those employed in government-owned and/or controlled corporations; (b) Managerial employees, if they meet all of the following conditions: (1) Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof. (2) They customarily and regularly direct the work of two or more employees therein.

 (3)

They have the authority to hire or fire employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight. (c) Officers or members of a managerial staff if they perform the following duties and responsibilities: (1) The primary duty consists of the performance of work directly related to management policies of their employer; (2) Customarily and regularly exercise discretion and independent judgment; and

 (3)

(i) Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof; or (ii) execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (iii) execute, under general supervision, special assignments and tasks; and Who do not devote more than 20 percent of their hours worked in a work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1), (2) and (3) above.

(4)

 (d)

Domestic servants and persons in the personal service of another if they perform such services in the employer's home which are usually necessary or desirable for the maintenance and enjoyment thereof, or minister to the personal comfort, convenience, or safety of the employer as well as the members of his employer's household. (e) Workers who are paid by results, including those who are paid on piece-work, "takay," "pakiao" or task basis, and other non-time work if their output rates are in accordance with the standards prescribed under Section 8, Rule VII, Book Three of these regulations, or where such rates have been fixed by the Secretary of Labor and Employment in accordance with the aforesaid Section.

 (f)

Non-agricultural field personnel if they regularly perform their duties away from the principal or branch office or place of business of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.

B.4. COMPUTATION OF REST DAY WORK

The

minimum statutory premium pay rates are as follows: 1.For work performed on rest or on special days: Plus 30% of the daily basic rate of 100% or a total of 130%. 2. For work performed on a rest day which is also a special day: Plus 50% of the daily basic rate of 100% or a total of 150%. 3. For work performed on a regular holiday which is also the employees rest day

 Plus

30% of the regular holiday rate of 200% based on his/her daily basic wage rate or a total of 260%.
B.5.

EMPLOYER AND EMPLOYEES MAY

STIPULATE A HIGHER RATE

Parties are free to stipulate on a higher premium subject to limitations provided by the labor code on non-diminution and non-circumvention. Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate.

B.6. REST DAY RATE FOR PUBLIC HEALTH

WORKERS
Premium

rates for authorized service rendered beyond normal hours of work of a public health worker during a rest day shall be 150% of base rate.
INVALID

B.7. WAIVER OF REST DAY COMPENSATION IS

An

express waiver of compensation for work on rest days and holidays provided in an employment contract which fixes annual compensation of the employees is not valid and does not operate to bar claims for extra compensation there for.

CHAPTER THREE HOLIDAYS, SERVICE INCENTIVE LEAVES AND

SERVICE CHARGES
Article

94 has undergone a lot of amendments to conform with the times and the changing economic conditions. Primarily, EO No. 203 which took effect on June 30, 1987 has amended Article 94. Likewise, on November 13, 2002, Republic Act No. 9177 also modified the same article. Republic Act No. 9492 which was approved on July 25, 2007 also added to the amendments.

Article 94 Holiday New Year Day Maundy Thursday Good Friday 9th of April 1st May 12th of June 4th of July

Remarks

EO 203 Regular Holidays New Years Day Maundy Thursday Good Friday Araw ng Kagitingan Labor Day Independence Day

Remarks

January 1 Movable Date Movable Date Bataan and Corregidor Day May 1 June 12

Deleted in EO 203

Last Sunday of August 30th of November 25th of December 30th of December General Election Special Days All Saints Day Last day of the year Bonifacio Day Christmas Day Rizal Day

New or addition
November 30 December 25 December 30

November 1 December 31

A.3. CHANGES UNDER R.A. 9177

R.A.

No. 9177 amended Sec. 26, Chapter 7 of EO no. 292., otherwise known as the Revised Administrative code of 1987. Eidul Fitr was added to the list of Regular Holidays and Nationwide Special Days. The following Muslim holidays are observed regionally: 1. Amun Jadid (New Year) 2.Maulid-un-Nabi (Birthday of Prophet Muhammad 3.Lailatu Isra Wal Miraj (Nocturnal Journey and Ascension of the Prophet Muhammad)

 4.

Id-ul-Fitr (Hari Raya Puasa) 5.Id-ul-Adha (Hari Raya Haji) The original holidays are officially observed in the provinces of Basilan, Lanao, Maguindanao, North Cotabato, Sultan Kudarat, Sulu, Tawi-tawi, Zamboanga del Norte and Zamboanga del Sur and in cities of Cotabato, Iligan, Marawi, Pagadian and Zamboanga, and in such other Muslim provinces and cities as may be created.

 Presidential

Proclamation No. 1198 (26 October 1973) provides:

All private corporations, offices, agencies and entities or establishments operating within the provinces and cities enumerated herein shall observe the legal holidays as proclaimed, provided, however, that provinces and cities shall be excused form work during the observance of the Muslim Holidays as recognized by law without diminution or loss of wages during the said period.

A.4. LEGAL BASIS OF THE CONTROVERSIAL HOLIDAYS UNDER PRESIDENT ARROYOS

ADMINISTRATION
Recently,

PGMA introduced certain modifications on how the present holidays should be observed. People are wondering whether she has that power to modify the holidays. Executive Order No. 292, as amended by Section 2 of R.A. No. 9177 allows the modification of the regular holidays and special holidays by way of law, order or proclamation Hence, the practice of President Macapagal-Arroyo is legally justified under R.A. No. 9177.

A.5. HOLIDAY PAY DURING MUSLIM HOLIDAYS

In

the case of SMC vs. The Hon. CA, G.R. No. 146775, the Supreme Court held that there should be no distinction between Muslims and nonMuslims as regards the payment of benefits of Muslim holidays. Besides , Article 3 of P.D. No. 1083, also declares that xxx nothing herein shall be construed to operate to the prejudice of a non-Muslim. This means that in the provisions observing the Muslim holidays, both believers of the faith and nonbelievers should be treated alike.

A.6. HOLIDAYS UNDER R.A. NO. 9492 The prevailing law on present holidays is R.A. No. 9492 An act Rationalizing the Celebration of National Holidays, Amending for the purpose, Sec. 26, Chapter 7, Book I of EO No. 292, As amended, Otherwise known as the Administrative code of 1987. Said law repealed or modified all laws, orders, presidential issuances, rules and regulations or part thereof inconsistent with it. In effect, Article 94 of the Labor Code, Executive Order No. 203 and R.A. No. 9177 are deemed repealed and modified accordingly.

Regular Holidays 1. New Years Day 2. Maundy Thursday 3. Good Friday 4. Eidul Fitr 5. Araw ng Kagitingan 6. Labor Day 7. Independence Day 8. National Heroes Day 9. Bonifacio Day 10. Christmas Day 11.Rizal Day Nationwide Special Holidays 1. Ninoy Aquino Day 2. All Saints Day 3.Last Day of the Year

Date Observed January 1 Movable Date Movable Date Movable Date Monday Nearest April 9 Monday Nearest May 1 Monday Nearest June 12 Last Monday of August Monday Nearest November 30 December 25 Monday nearest December 30 Date Observed Monday nearest August 21 November 1 December 31

A.8.

DAY OF HOLIDAY MAY NOT BE THE DATE

OF CELEBRATION

R.A.

No. 9492 changes the day of the celebration of the holiday in keeping with the rationale of the law. Hence, the rule shall be as follows: Date of Celebration Monday of the Week Monday that follows

Date the Holiday Falls Wednesday Sunday

A.9. LIST OF HOLIDAY FOR YEAR 2010

A. Regular Holidays New Years Day Maundy Thursday Good Friday Eidl fitr Araw ng Kagitingan Labor Day Independence Day National Heroes Day Bonifacio Day Christmas Day Rizal Day April 9 (Friday) May 1 June 14 August 30 November 29 December 25 December 27 January 1 April 1 April 2

B. Special (Non-working) Days Ninoy Aquino Day All Saints Day Additional Special (Non-Working) Day Last Day of the Year December 24 December 31 August 23 November 1

C. Special Holiday ( for all Schools) EDSA Revolution Anniversary February 22

A.10. DAY OF GENERAL ELECTIONS AS A HOLIDAY The laws amending Article 94 of the Labor Code Provide that amendment or repeal shall take effect only as to portions which are inconsistent with the amendatory or repealing laws. Since the general election is not inconsistent with the amendatory laws, paragraph c of Article 94 on general election remains unchanged.

As used in this Article, holiday includes: New Years Day, Maundy Thursday, Good Friday, the ninth of April, the first of May, the twelfth of June, the fourth of July, the thirtieth of November, the twenty-fifth and thirtieth of December and the day designated by law for holding a general election.

A.11. NINOY AQUINO DAY

The

holiday was created by Republic Act 9256, which was signed into law by President Gloria Macapagal-Arroyo on February 25, 2004, twentyone years after his death and the eighteen years after the People Power Revolution., and was sponsored by Senate President Franklin Drilon and House Speaker Jose de Venecia. It requires an EDSA People Power Commission (EPPC) to hold activities in observance the day and shall be funded from the Budget of the Office of the President and from private donations.

A.12. OTHER HOLIDAY AND HOLIDAY POLICIES

On

July 25, 2007, President Gloria MacapagalArroyo signed into law Republic Act (RA) 9492 also known as "An Act Rationalizing the Celebration of National Holidays", designating 11 Regular Holidays and three Nationwide Special Holidays. Specific dates or days for celebration are designated. The law provides that holidays falling on a Wednesday will be observed on the Monday of the week and that holidays falling on a on a Sunday, the holiday will be observed on the Monday that follows.

 Three

holidays (Maundy Thursday, Good Friday, and Eidul Fitr) are designated as having movable dates, and the law provides that for movable holidays the President shall issue a proclamation, at least six months prior to the holiday concerned, the specific date that shall be declared as a non-working day. Though it was allowed by RA 9492, Labor Day was never moved to another date by President Arroyo at the request of labor groups.

A.13.CONCEPT OF HOLIDAY PAY

Holiday

pay is a legislated benefit enacted as part of the Constitutional imperative that the State shall afford protection to labor. Its purpose is not merely "to prevent diminution of the monthly income of the workers on account of work interruptions. In other words, although the worker is forced to take a rest, he earns what he should earn, that is, his holiday pay." It is also intended to enable the worker to participate in the national celebrations held during the days identified as with great historical and cultural significance

A.13.1. COVERAGE OF HOLIDAY PAY

The rule on holiday pay shall apply to all employees except: (a) Those of the government and any of its political subdivisions, including government-owned and/or controlled corporations; (b) Those of retail and service establishments regularly employing not more than five (5) workers; (c) Domestic helpers and persons in the personal service of another; (d) Managerial employees as defined in Book Three of this Code; (e) Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.

A.13.2.

HOLIDAY PAY OF MONTHLY-PAID

EMPLOYEES

Employees

who are paid by the month, irrespective of the number of working day therein, with a salary of not less than the statutory or established minimum wage shall be paid for all days in the month whether worked or not. this purpose, the monthly minimum wage shall not be less than the statutory minimum wage multiplied by 365 days divided by twelve.

For

A.13.3. MANDATE TO PAY WORK ON HOLIDAYS

Every

employer shall pay his employees their regular daily wage for any worked regular holidays. As used in the rule, the term regular holiday shall exclusively refer to: New Years Day, Maundy Thursday, Good Friday, the ninth of April, the first of May, the twelfth of June, the last Sunday of August, the thirtieth of November, the twenty-fifth and thirtieth of December. Nationwide special days shall include the first of November and the last day of December.

A.13.4. PAYMENT OF HOLIDAY WORK; ORDINARY REGULAR HOLIDAY WORK

Ordinary

regular holiday work means work performed on a day that is a regular holiday and not a rest day or not falling on special day or both. employee who is permitted or suffered to work on any regular holiday, not exceeding 8 hours, shall be paid at least two hundred percent of his regular wage.

Any

A.13.5. ADDITIONAL PREMIUM TO BE PAID WHEN

THE REGULAR HOLIDAY WORK FALLS ON A SCHEDULED REST DAY
If

the holiday work falls on the scheduled rest day of the employee, he shall be entitled to an additional premium pay of at least 30% of his regular holiday rate of 200% based on his regular wage rate.

A.13.6. OVERTIME WORK ON A REGULAR HOLIDAY.

For

work performed in excess of eight hours on a regular holiday, an employee shall be paid an additional compensation for the overtime work equivalent to his rate for the first eight hours on such holiday work plus at least 30% thereof.

A.13.7. OVERTIME WORK ON A REGULAR

HOLIDAY FALLING ON REST DAY
Where

the regular holiday work exceeding eight hours falls on the scheduled rest day of the employee, he shall be paid an additional compensation for the overtime work equivalent to his regular holiday-rest day for the first 8 hours plus 30% thereof. The regular holiday rest day rate of an employee shall consist of 200% of his regular daily wage plus 30% thereof.

A.14. SPECIAL DAYS OR SPECIAL HOLIDAYS

Holiday

which is not a regular holiday was called a special holiday prior to issuance of EO no. 203. After which, is was termed special day by President Corazon C. Aquino pursuant to such EO. But under R.A. Nos. 7199 and 9492 the terms are interhchangeably used to describe the nationwide special holidays like Ninoy Aquino Day, All Saints Day and Last Day of the Year.

A.15. NO WORK, NO PAY AS APPLIED TO

SPECIAL HOLIDAYS OR SPECIAL DAYS
The

rule is that if the employee does not work on any of the special days or special holidays, he is not entitled to any compensation under the doctrine of no work, no pay. It is important to note however, that whatever pay or benefits given by the company in excess of what is provided by law may not anymore be removed under the doctrine of non-diminution of benefits.

A.16. BASIC PAY ONLY FOR SPECIAL WORKING

HOLIDAY
There

are occasions where the government declares certain day a special working holiday. the questions is what should be the compensation for those who work on this day? The rule is that an employee is entitle only to his basic for work performed during days declared as special working holidays. No premium is required since work performed on said days is considered work on ordinary working days.

A.17. IF REGULAR HOLIDAY FALLS ON A SUNDAY,

THE FOLLOWING DAY IS A SPECIAL HOLIDAY
Where

a regular holiday falls on a Sunday, the following day shall be considered a special holiday for purposes of the Labor Code, unless said day is also a regular holiday. In effect, the rules on special holiday shall apply to the Monday following the Sunday that is a regular holiday. But the rules have changed since with the passage of R.A. No. 9492, if a regular holiday falls on a Sunday, the holiday will be observed on the Monday that follows.

A.18. EFFECT OF ABSENCES ON HOLIDAY PAY

All

covered employees shall be entitled to holiday pay when they are on leave of absence with pay on the workday immediately preceding the regular holiday. Employees who are on leave of absence without pay on the day immediately preceding a regular holiday may not be paid the required holiday pay if they do not work on such regular holiday

A.19. RULE ON SUCCESSIVE REGULAR

HOLIDAYS
Where

there are two successive regular holidays, like Maundy Thursday and Good Friday, an employee may not be paid for both holidays if he/she absents himself/herself from work on the day immediately preceding the first holiday, unless he/she works on the first holiday, in which case he/she is entitled to his/her holiday pay on the second day.

A.20. TEMPORARY OR PERIODIC SHUTDOWN/CESSATION OF WORK

In

cases of temporary or periodic shutdown and temporary cessation of work of an establishment, as when a yearly inventory or when the repair or cleaning of machineries and equipment is undertaken, the regular holidays falling within the period shall be compensated in accordance with this Rule.

A.21. HOLIDAY PAY CERTAIN EMPLOYEES

1.

Where the covered employee is paid on piece rate basis, his/her holiday pay shall not be less than his/her average daily earnings for the last 7 actual work days preceding the regular holiday; provided, however, that in no case shall the holiday pay be less than the applicable statutory minimum wage rate. 2. seasonal workers may not be paid the required holiday pay during off-season when they are not at work. 3. Workers who do not have regular working days, shall be entitled to this benefit.

A.22. HOLIDAY PAY OF WORKERS PAID BY RESULTS

Rule

IV ,Holidays with pay: Section 1. Coverage This rule shall apply to all employees except: (e) Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.

 The

above rule is in conflict with Section 8, Rule IV Book III, of the same Rules. Thus: Where a covered employee, is paid by results or output, such as payment on piece work, his holiday pay shall not be less than his average daily earnings for the last seven (7) actual working days preceding the regular holiday; Provided, However, that in no case shall the holiday pay be less than the applicable statutory minimum wage rate.

(b)

 To

reconcile this contradiction, the Supreme Court used supervised or unsupervised test. There are two categories of employees paid by results: 1. Those whose time and performance are supervised by the employer. A piece rate worker workers belongs to this category especially if he performs his work in the company premises. 2. Those whose time and performance are unsupervised. Workers on pakyao and takay basis belong to this group.

A.23. HOLIDAY PAY AS APPLIED TO FIELD

PERSONNEL