Professional Documents
Culture Documents
84
- HOURS WORKED. Hours worked shall be
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.
Rest periods of short duration during work hours shall be counted as hours worked.
Rest periods of short duration
- Rest periods of short duration during work hours shall be counted as hours worked (Art. 84)
4 instances or principles of Hours worked
1. All hours are hours worked which the employee is required to give his employer,
REGARDLESS of whether or not such hours are spent in productive labor or involve physical
or mental exertion
2. An employee need not leave the premises of the workplace in order that his rest period
shall not be counted, it being enough that he stops working, may rest completely and may
leave his workplace, to go elsewhere, whether within or outside the premises of his
workplace
3. If the work performed was necessary, or it benefitted the employer, or the employee
could not abandon his work at the end of his normal working hours because he had no
replacement, 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
4. The time during which an employee is inactive by reason of interruptions in his work
beyond his control shall be considered time either if the imminence of the resumption 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.
If the employee could not abandon his work because he has no replacement
- (one of the principles in determining whether the time spent by an employee is considered
hours worked)
- Rule: 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
Company time
Interruption on his work
- The time during which an employee is inactive by reason of interruptions in his work
beyond his control shall be considered time either if the imminence of the resumption 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.
Preliminary and postliminary activities
- Preliminary- before work
- Postliminary- after actual work
- RULE: deemed performed during work hours, where such activities are controlled or
required by the employer and are pursued necessarily and primarily for the employers
benefit
Waiting hours when considered compensable
- Waiting time spent by an employee shall be considered as working time it waiting is
considered an integral part of his work or if the employee is required or engaged by an
employer to wait.
Meal period
- The employee must be completely relieved from duty for the purpose of eating regular
meals. If this is the case, meal time is not compensable.
- EXCEPTION: the employee is not relieved if he is required to perform his duties, whether
active or inactive, while eating. (Compensable)
- Noncompensable meal break is free time. If not, then compensable, whether the worker is
able to eat or not.
While sleeping
- A worker sleeping may be working.
- Whether sleeping time allowed an employee will be considered as part of his working time
will depend upon the express or implied agreement of the parties. In the absence of
agreement, it will depend upon the nature of the service and its relation to the working time.
- RULE: Sleeping time may be considered working time if it is subject to serious interruption
or takes place under conditions substantially less desirable than would be likely to exist at
the employees home.
- HOWEVER, sleeping time will not be regarded as working time if there is an opportunity for
comparatively uninterrupted sleep under fairly desirable conditions, even though the
employee is required to remain on or near the employers premises and must hold himself in
readiness for a call to action employment.
Working on call
- An employee who is required to remain on call on the employers premises or so close
thereto that he cannot use the time effectively for his own purposes is working while on
call,
- An employee who is not required to remain on the employers premises but is merely
required to leave words at his home or with company officials where he may be reached is
not working while on call.
For public health workers,
- the time when a public health worker is place on On Call status shall not be considered
as hours worked but shall entitle the public health worker to an On Call pay equivalent to
50% of his/her regular wage. On call status refers to a condition when public health
workers are called upon to respond to urgent or immediate need for health/medical
assistance or relief work during emergencies such that he/she cannot devote the time for
his/her own use. (Sec. 15, RA 7305)
Travel time
- Time spent in traveling has been held to constitute working time within the overtime
provisions of the Fair Labor Standards Act under some circumstances.
1. Travel from home to work Normal travel from home to work is not worktime. But when
an employee receives an emergency call outside of his regular working hours and is required
to travel to his regular place of business or some other work site, all of the time spent in
such travel is working time.
2. Travel that is all in days work Time spent by an employee in travel as part of his
principal activity, such as travel from jobsite to jobsite during the workday, must be counted
as hours worked.
3. Travel away from home Travel that keeps an employee away from home overnight is
travel away from home.
- Travel away from home is worktime when it cuts across the employees workday. The time
is hours worked not only on a regular working days during normal working hours but also
during the corresponding hours on nonworking days.
Lectures, trainings, meetings, programs
- Attendance in such need not be counted as working time if the following criteria are met:
1. Attendance is outside of the employees regular working hours
2. Attendance is in fact voluntary
3. The employee does not perform any productive work during such attendance.
Semestral Break
- Regular full-time monthly paid teachers in a private school are entitled to salary and
emergency cost-of-living allowance during semestral break. (Read University of Pangasinan
Faculty Union vs. University of Pangasinan)
Work hours of Seamen
- A labourer need not leave the premises of the factory, shop or boat in order that his period
of rest shall not be counted, it being enough that he ceases to work, may rest completely
and leave or may leave at his will the spot where he actually stays while working, to go
somewhere else, whether within or outside the premises of said factory, shop or boat..
- A worker is entitled to overtime pay only for work in actual service beyond eight hours.
Who has the burden of proof in determining 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.
Meal periods can be shortened
GENERAL RULE: not less than 1 hour time-off for regular meals non-compensable
Except: meal period of not less than 20 mins. in the following cases compensable hours
worked:
1. Where the work is non-manual work in nature or does not involve strenuous physical
exertion
2. Where the establishment regularly operates not less than 16 hours a day
3. 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
4. Where the work is necessary to prevent serious loss of perishable goods
Shortened meal periods upon employees request
The employees themselves may request that their meal period be shortened so that they
can leave work earlier than the previously established schedule.
The shortened period is not compensable.
The DOLE in allowing such arrangement, imposes, certain conditions (see p. 291)
Diminution of salary and benefits
NSD
Night Shift Differential (NSD) every employee shall be paid a night shift differential of not
less than 10% of his regular wage for each hour of work performed between ten oclock in
the evening and six oclock in the morning.
NSD = (10% x regular wage/hr.) x no. of hrs. of work between 10 pm 6 am
If work done between 10 pm and 6 am is OT work, the NSD should be based on the OT
rate.
Employees NOT Covered by NSD:
1. Those of the government and any of its political subdivisions, including governmentowned and/or controlled corporations
2. Those of retail and service establishments regularly employing not more than 5 workers
3. Domestic helpers and persons in the personal service of another
4. Managerial employees
5. 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
OT Pay
Overtime Pay (OT) is an additional pay for service or work rendered in excess of eight
hours a day by employees or laborers in employment covered by the Eight-hour Labor Law
OT on a Regular Day: regular wage + at least 25% thereof
OT on a Holiday/Eees Rest Day: rate of 1st 8 hrs. on holiday/rest day + at least 30%
thereof. Since the
OT work is considered hourly, the pay rate is computed also on per hour basis. The daily
wage is divided by 8 to get the hourly base rate.
Daily rate
If employee is paid on a monthly salary basis, the daily rate is obtained by the following
formula:
Daily Rate = (monthly salary x 12) / Total no of days considered paid in a year
Permissible for the employer to stipulate that the employees monthly salary constitutes
payment for all the days of the month, including rest days and holidays, where the
employees monthly salary, when converted by the increased divisor into its daily
equivalent, would still meet minimum wage.
Work Day
24-hr period commencing from the time an employee regularly starts to work regardless of
whether the work is broken or continuous
Offsetting
Undertime NOT Offset by OT an employees regular pay rate is lower than the OT rate.
Offsetting the undertime hours against the OT hours would result in undue deprivation of the
employees extra pay for OT work.
Right to OT pay cannot be waived. But when the alleged waiver of OT pay is in
consideration of benefits and privileges which may even exceed the OT pay, the waiver may
be permitted.
Instance when to render OT
Conditions to be entitled to OT pay:
1. Actual rendition of OT work
2. Submission of sufficient proof that said work was actually performed
3. OT work is with the knowledge and consent of the employer
Compulsory OT Work (provided employee paid the additional compensation required):
1. Country at war/National or Local
2. Emergency Completion of work started before the 8th hour and is necessary to prevent
serious obstruction or prejudice to the business
3. Urgent work to be performed on Machines to avoid serious loss or damage to employer
4. Necessary to Prevent loss of life/property or Imminent danger to public safety
5. Necessary to prevent loss or damage to perishable goods
6. Necessary to avail of favorable weather or environmental condition
Broken Time
The minimum working hours fixed by the Act need not be continuous to constitute as the
legal working day of eight hours as long as the eight hours is within the working day. (Ex.
When an employee is required to work 4 hours in the morning and 4 hours in the evening)
Flexi-Holiday
(Under Flexible Work Arrangements) The employees agree to avail themselves of the
holidays at some other days. Provided that there is no diminution of existing benefits as a
result of such arrangement.
Weekly Rest
It is the duty of the employer, whether operating for profit or not, to provide each of his
employees a rest period of not less than 24 consecutive hours after every 6 consecutive
normal work days.
The employer shall also respect the preference of the employees as to their weekly rest day
if such preference is based on religious grounds.
Premium Pay
Premium pay refers to the additional compensation required by law to be paid to employees
for work performed on working days, such as rest days and special holidays.
Holiday Pay
Regular Holiday
-100% of basic wage rate if employee does not work on such day
-plus 100% to basic wage rate if employee works on such day, hence, 200%
reason to depart from the findings of the CA. The Court is of the considerable view that on
Javier lies the burden to pass the well-settled tests to determine the existence of an
employer-employee relationship, viz: (1) the selection and engagement of the employee; (2)
the payment of wages; (3) the power of dismissal; and (4) the power to control the
employees conduct. Of these elements, the most important criterion is whether the
employer controls or has reserved the right to control the employee not only as to the result
of the work but also as to the means and methods by which the result is to be accomplished.
[35]
In this case, Javier was not able to persuade the Court that the above elements exist in his
case. He could not submit competent proof that Fly Ace engaged his services as a regular
employee; that Fly Ace paid his wages as an employee, or that Fly Ace could dictate what
his conduct should be while at work. In other words, Javiers allegations did not establish
that his relationship with Fly Ace had the attributes of an employer-employee relationship on
the basis of the above-mentioned four-fold test.
The Courts decision does not contradict the settled rule that payment by the piece is just a
method of compensation and does not define the essence of the relation.[37] Payment on
a piece-rate basis does not negate regular employment. The term wage is broadly defined
in Article 97 of the Labor Code as remuneration or earnings, capable of being expressed in
terms of money whether fixed or ascertained on a time, task, piece or commission basis.
Payment by the piece is just a method of compensation and does not define the essence of
the relations. Nor does the fact that the petitioner is not covered by the SSS affect the
employer-employee relationship. However, in determining whether the relationship is that
of employer and employee or one of an independent contractor, each case must be
determined on its own facts and all the features of the relationship are to be
considered.[38] Unfortunately for Javier, the attendant facts and circumstances of the
instant case do not provide the Court with sufficient reason to uphold his claimed status as
employee of Fly Ace.
any concrete proof that additional service beyond the normal working hours and days had
indeed been rendered, we cannot affirm the grant of overtime pay to Pigcaulan.
2. Yes. Article 94 of the Labor Code provides that:
ART. 94. RIGHT TO HOLIDAY PAY. (a) Every worker shall be paid his regular daily wage
during regular holidays, except in retail and service establishments regularly employing less
than ten (10) workers;
While Article 95 of the Labor Code provides:
ART. 95. RIGHT TO SERVICE INCENTIVE LEAVE. (a) Every employee who has rendered at
least one year of service shall be entitled to a yearly service incentive of five days with pay.
Under the Labor Code, Pigcaulan is entitled to his regular rate on holidays even if he does
not work.[30] Likewise, express provision of the law entitles him to service incentive leave
benefit for he rendered service for more than a year already.
Furthermore, under
Presidential Decree No. 851,[31] he should be paid his 13th month pay. As employer, SCII
has the burden of proving that it has paid these benefits to its employees.[32]
SCII presented payroll listings and transmittal letters to the bank to show that Canoy and
Pigcaulan received their salaries as well as benefits which it claimed are already integrated
in the employees monthly salaries. However, the documents presented do not prove SCIIs
allegation. SCII failed to show any other concrete proof by means of records, pertinent files
or similar documents reflecting that the specific claims have been paid. With respect to
13th month pay, SCII presented proof that this benefit was paid but only for the years 1998
and 1999. To repeat, the burden of proving payment of these monetary claims rests on SCII,
being the employer. It is a rule that one who pleads payment has the burden of proving it.
Even when the plaintiff alleges non-payment, still the general rule is that the burden rests
on the defendant to prove payment, rather than on the plaintiff to prove non-payment.[33]
Since SCII failed to provide convincing proof that it has already settled the claims, Pigcaulan
should be paid his holiday pay, service incentive leave benefits and proportionate 13th
month pay for the year 2000.
Consistent with the rule that all money claims arising from an employer-employee
relationship shall be filed within three years from the time the cause of action accrued,[34]
Pigcaulan can only demand the amounts due him for the period within three years preceding
the filing of the complaint in 2000. Furthermore, since the records are insufficient to use as
bases to properly compute Pigcaulans claims, the case should be remanded to the Labor
Arbiter for a detailed computation of the monetary benefits due to him.
HELD:
Yes. The Supreme Court ruled that respondents were illegally dismissed. In labor
cases, the employer has the burden of proving that the dismissal was for a just cause; failure
to show this would necessarily mean that the dismissal was unjustified and, therefore,
illegal. To allow an employer to dismiss an employee based on mere allegations and
generalities would place the employee at the mercy of his employer; and the right to
security of tenure, which this Court is bound to protect, would be unduly emasculated. In
this case, petitioner merely contended that it was respondents who ceased to report to work,
and never presented any substantial evidence to support said allegation. Petitioner
therefore failed to discharge its burden, hence, respondents were correctly declared to have
been illegally dismissed.
Furthermore, if doubts exist between the evidence presented by the employer and the
employee, the scales of justice must be tilted in favor of the latter the employer must
affirmatively show rationally adequate evidence that the dismissal was for a justifiable
cause. It is a time-honored rule that in controversies between a laborer and his master,
doubts reasonably arising from the evidence should be resolved in the formers favor. The
policy is to extend the doctrine to a greater number of employees who can avail of the
benefits under the law, which is in consonance with the avowed policy of the State to give
maximum aid and protection of labor.
When a person is illegally dismissed, he is entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages. In the event, however, that
reinstatement is no longer feasible, or if the employee decides not to be reinstated, the
employer shall pay him separation pay in lieu of reinstatement. Such a rule is likewise
observed in the case of a strained employer-employee relationship or when the work or
position formerly held by the dismissed employee no longer exists. In sum, an
illegally dismissed employee is entitled to: (1) either reinstatement if viable or separation
pay if reinstatement is no longer viable, and (2) backwages. In the instant controversy,
reinstatement is no longer viable considering the strained relations between petitioner and
respondents. As admitted by the latter, the complaint filed before the DOLE strained their
relations with petitioner who eventually dismissed them from service. Payment of
separation pay instead of reinstatement would thus better promote the interest of both
parties.
Respondents separation pay should be computed based on their respective one (1)
month pay, or one-half (1/2) month pay for every year of service, whichever is
higher, reckoned from their first day of employment up to finality of this decision. Full
backwages, on the other hand, should be computed from the date of their dismissal until the
finality of this decision.
No. The Supreme Court stressed the "four-fold test" in determining the existence of
employer-employee relationship. The elements to determine the existence of an
employment relationship are: 1. the selection and engagement of the employee 2. the
payment of wages 3. the power of dismissal and 4. the employer's power to control the
employee's conduct
The most important element is the last element. That is, the employer controls the
conduct of an employee not only as to the result of the work to be done, but also as to the
means and methods to accomplish it. It bears stressing that the facts of the case clearly
indicate the existence of employer-employee relationship. The involvement of F. Garil, the
employment agency, is limited only to the recruitment aspect. Furthermore, despite of the
presence of a stipulation agreed into by the employment agency and herein respondent to
the extent that the rank-and-file employees are considered as the employees of the former,
the Supreme Court held that said contractual stipulation cannot override factual
circumstances firmly establishing the legal existence of an employer-employee relationship.
NT&SA, Bank of America International, Ltd. v. Court of Appeals, this Court held that: [a]
Philippine Court may assume jurisdiction over the case if it chooses to do so; provided, that
the following requisites are met: (1) that the Philippine Court is one to which the parties
may conveniently resort to; (2) that the Philippine Court is in a position to make an
intelligent decision as to the law and the facts; and, (3) that the Philippine Court has or is
likely to have power to enforce its decision.