ases for clabor3

7/28/2019 ases for CLABOR3

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PLACEMENT CORP G.R. No. 109808March 1, 1995 PUNO

Facts:

Petitioner Esalyn Chavez, anentertainment dancer, entered into astandard employment contract for

overseas Filipino artists and entertainerswith Planning Japan Co through itsPhilippine representative, privaterespondent Centrum Placement &Promotions Corporation. The contract hada duration of 2-6 months, and petitionerwas to be paid a monthly compensation ofUS$1,5000.00. POEA approved thecontract. Subsequently, petitionerexecuted side agreement reducing hersalary below the minimum standard set bythe POEA with her Japanese employerthrough her local manager, Jaz TalentsPromotion. Petitioner left for Osaka, Japan,where she worked for 6 months. She cameback to the Philippines. Petitionerinstituted the case at bench forunderpayment of wages with the POEAPrivate respondent Centrum Promotionsand Placement Corporation, the Philippinerepresentative of Planning Japan, Co.,

Inc., its insurer, Times Surety andInsurance Co., Inc., and Jaz TalentsPromotion. The complaint was dismissedby POEA which was affirmed by POEA.

Issue: WON private respondents are notsolidarily liable to her for US$6,000.00 inunpaid wages.

Ruling:

Thirdly, private respondents Centrum andTimes as well as Planning Japan Co., Ltd.the agency's foreign principal are solidarilyliable to petitioner for her unpaid wages.This solidary liability also arises from theprovisions of Section 10(a)(2), Rule V,Book I of the Omnibus Rules Implementingthe Labor Code, as amended, thus: a) A

formal appointment or agency contractexecuted by a foreign-based employer infavor of the license holder to recruit andhire personnel for the former xxx. Suchformal appointment or recruitmentagreement shall contain the followingprovisions, among others: 2. Power of theagency to sue and be sued jointly andsolidarily with the principal or foreignbased employer for any of the violations ofthe recruitment agreement and thecontracts of employment.

Our overseas workers constitute anexploited class. Most of them comefrom the poorest sector of our society.They are thoroughly disadvantaged.Their profile shows they live insuffocating slums, trapped in anenvironment of crime. Hardly literateand in ill health, their only hope lies in

jobs they can hardly find in ourcountry. Their unfortunatecircumstance makes them easy preyto avaricious employers. They willclimb mountains, cross the seas,endure slave treatment in foreignlands just to survive. Out ofdespondence, they will work undersub-human conditions and acceptsalaries below the minimum. The least

we can do is to protect them with our

laws in our land. Regretfully,respondent public officials who shouldsympathize with the working classappear to have a different orientation.

Petition is granted.

V. LOCAL EMPLOYMENT

A. CONDITIONS OFEMPLOYMENT

a. Employment of:

1. APPRENTICES

i. Definition of Termsa. Apprenticeship- means practical

training on the job supplemented byrelated theoretical instruction.

b. Apprentice- is a worker who iscovered by a written apprenticeshipagreement with an individual employeror any of the entities recognized underthis Chapter.

c. Apprenticeable occupation-means any trade, form of employment oroccupation which requires more thanthree (3) months of practical training on

the job supplemented by relatedtheoretical instruction.

d. Apprenticeship agreement- is anemployment contract wherein theemployer binds himself to train theapprentice and the apprentice in turnaccepts the terms of training.

ii. Qualifications of Apprentices:1. At least 15 years of age; p r o v id e d thatthose who are at least 15 years of age but

less than 18 may be eligible for


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apprenticeship and the apprenticeshipagreement shall be signed in his behalf bythe parent or guardian or authorizedrepresentative of DOLE.NOTE: The apprenticeable age under Art.59 of the Labor Code is 14 but under theImplementing Rules, the age is 15. Thequestion of variance is rendered moot and

academic by RA 7610 which explicitlyprohibits employment of children below 15years old. RA 7610 recognizes certainexceptions, but being an apprentice is notone of the exceptions.2. Possess vocational aptitude andcapacity for appropriate tests; and3. Possess the ability to comprehend andfollow oral and written instructions;4. The company must have anapprenticeship program duly approved bythe DOLE. Trade and industry associations may

recommend to the Secretary of Labor,educational qualifications forapprentices, if approved, shall be theeducational requirements forapprenticeship in such occupationsunless waived by an employer in favorof an applicant who has demonstratedexceptional ability.

iii. Requisites for Employment ofApprentices:

1. Employers must be engaged in highlytechnical industries;2. Apprentice may be hired only inapprenticeable occupations as determinedby the Secretary of Labor.

iv. Requisites for a ValidApprenticeship:1. Qualifications of the apprentice;2. Qualifications of the employer;

3. Apprenticeship Agreement dulyexecuted and signed which shall containthe following:

a. the duration of apprenticeshipwhich shall not exceed 6 months;b. the wage rates below the legalminimum wage which in no case shallstart below 75% of the applicable

minimum wage in the place where heis working (i.e. compensation whichmust not be less than 75% of theapplicable minimum wage except on-the-job training (OJT).

4. Apprenticeship program duly approvedby the DOLE (Nitto Enterprises vs. NLRC,GR No. 114337, Sept, 29, 1995);otherwise, theres a possibility thatapprentice may become a regularemployee.5. Period of apprenticeship shall notexceed 6 months.

v. Signing of ApprenticeshipAgreement Every apprenticeship agreement shall

be signed by the employer or his dulyauthorized representative and by theapprentice.

An apprenticeship agreement with aminor shall be signed in his behalf by

his parent or guardian, or if the latter isnot available, by an authorizedrepresentative of the DOLE.

vi. Venue of ApprenticeshipPrograms

OJT of Apprentices may be undertakenin:

1. the plant, shop or premises, of theemployer or firm concerned if theapprenticeship program is organizedby an individual employer or firm;

2. the premises of one or severalfirms designated for the purpose bythe organizer of the program if suchorganizer is an association ofemployers, civic group and the like;and

3. DOLE Training Center or otherpublic training institutions with

which the Bureau has madeappropriate arrangements.

vii. Violation of ApprenticeshipAgreement

Art. 65. Investigation of violation ofapprenticeship agreement. Uponcomplaint of any interested person or uponits own initiative, the appropriate agencyof the Department of Labor andEmployment or its authorizedrepresentative shall investigate anyviolation of an apprenticeship agreementpursuant to such rules and regulations asmay be prescribed by the Secretary ofLabor and Employment.

Art. 66. Appeal to theSecretary of Labor and Employment.The decision of the authorized agency ofthe Department of Labor and Employment

may be appealed by any aggrieved personto the Secretary of Labor and Employmentwithin five (5) days from receipt of thedecision. The decision of the Secretary ofLabor and Employment shall be final andexecutory. Art. 67.Exhaustion of administrativeremedies. No person shall institute anyaction for the enforcement of anyapprenticeship agreement or damages forbreach of any such agreement, unless he


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has exhausted all available administrativeremedies.

viii. Voluntary Organization ofApprenticeship Program

General Rule- The organization ofapprenticeship program shall be

primarily a voluntary undertaking ofemployers.

Exception- Instances whenorganization of program is compulsory:1. when national security or particular

requirements of economicdevelopment so demand;

2. where services of foreigntechnicians are utilized by privatecompanies in apprenticeable trades.

Art. 71. Deductibility of training costs.An additional deduction from taxableincome of one-half (1/2) of the value oflabor training expenses incurred fordeveloping the productivity and efficiencyof apprentices shall be granted to theperson or enterprise organizing anapprenticeship program: Provided, Thatsuch program is duly recognized by theDepartment of Labor and Employment:

Provided, further, That such deductionshall not exceed ten (10%) percent ofdirect labor wage: and Provided, finally,That the person or enterprise who wishesto avail himself or itself of this incentiveshould pay his apprentices the minimumwage.

Art. 72. Apprentices withoutcompensation. The Secretary of Laborand Employment may authorize the hiring

of apprentices without compensation

whose training on the job is required bythe school or training program curriculumor as requisite for graduation or boardexamination.

Requisites for Tax Deductions inCase Employers haveApprenticeship Programs:

1. the program must be duly recognizedby the DOLE;2. the deduction shall not exceed 10% ofdirect labor wage; and3. the employer must pay his apprenticesfor minimum wage.

2. LEARNERS

i. Definition of Termsa. Learners- are persons hired as traineesin semi-skilled and other industrialoccupations which are non-apprenticeableand which may be learned throughpractical training on the job in a relativelyshort period of time which shall not exceedthree (3) months.b. Learnership Agreement- refers to theemployment and training contract enteredinto between the employer and thelearner.

ii. When Learners May be Hired1. when no experienced workers areavailable;2. the employment of learners beingnecessary to prevent curtailment ofemployment opportunities; and3. such employment will not create unfaircompetition in terms of labor costs norimpair working standards.

iii. Contents of Learnership

Agreement

1. The names and addresses of theemployer and the learner;2. The occupation to be learned and theduration of the training period which shallnot exceed 3 months.3. The wage of learner which shall be atleast 75% of the applicable minimumwage; and

4. A commitment to employ the learner, ifhe so desires, as a regular employee uponcompletion of training. A learner who has worked during the

first 2 months shall be deemed aregular employee if training isterminated by the employer before theend of the stipulated period through nofault of the learner.

Learners in piecework-Learnersemployed in piece or incentive-rate

jobs during the training period shall bepaid in full for the work done.

APPRENTICESHIP LEARNERSHIP

Duration

Not less than 3months practicaltraining on the jobbut not more than a6 months

Practical training onthe job not toexceed 3 months.

ConceptPractical training onthe jobsupplemented byrelated theoreticalinstruction

Hiring of persons astrainees in semi-skilled and otherindustrialoccupations whichare non-apprenticeable andwhich may belearned through

practical training on


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the job in arelatively shortperiod of time.

Employers Commitment to Hire

No commitment tohire

With a commitmentto employ thelearner as regularemployee if he

desires uponcompletion of learnership

Effect of Pre-termination

Worker is notconsidered anemployee

Learner isconsidered regularemployee after 2months of trainingand dismissal iswithout fault oflearner

Focus of Training

Highly skilled ortechnical industriesand in industrialoccupation

Semi-skilled/industrialoccupation (non-apprenticeable)

Approval

Requires DOLEapproval for validity

Not required

Exhaustion of Administrative Remedies incase of Breach

Precondition forfiling action

Not required

3. HANDICAPPED

Handicapped workers- are thosewhose earning capacity is impaired byage or physical or mental deficiency orinjury.

i. When Employable

1. when their employment is necessary toprevent curtailment of employmentopportunities; and

2. when it does not create unfaircompetition in labor costs or impair orlower working standards.

Subject to the provisions of the LaborCode, handicapped workers may behired as regular workers,apprentices, or learners, if theirhandicap is not such as toeffectively impede the performanceof job operations in the particularoccupations for which they were hired.

Equal Opportunity for Employment(RA 7277)- No disable person shall bedenied access to opportunities forsuitable employment. Qualified disabledemployees shall be subject to thesame terms and conditions ofemployment and the samecompensation, privileges, benefits,fringe benefits, incentives or allowancesas a qualified able-bodies person. Evena handicapped worker can acquire thestatus of a regular employee.

Duration of Employment- theminimum, no maximum duration.Dependent on agreement but it isnecessary that there is a specificduration.

ii. Contents of EmploymentAgreement

Any employer who employs

handicapped workers shall enter into

an employment agreement with them,which agreement shall include:

1. The names and addresses of thehandicapped workers to beemployed;

2. The rate to be paid the handicappedworkers which shall not be less than

seventy five (75%) percent of theapplicable legal minimum wage;

3. The duration of employment period;and

4. The work to be performed byhandicapped workers.

NOTE: The employment agreement shallbe subject to inspection by the Secretaryof Labor or his duly authorizedrepresentative.

HANDICAPPEDWORKERS under

Labor Code

HANDICAPPEDPERSON (RA

7277)

Those whoseearning capacity isimpaired by age or

physical or mentaldeficiency or injury.

Those sufferingfrom restriction ordifferent abilities, as

a result of a mental,physical or sensoryimpairment, toperform an activityin the manner orwithin the rangeconsidered normalfor a human being.

4. HOMEWORKERS


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i. Regulation of Industrial Home

The Rule shall apply to anyhomeworker who performs in or abouthis home any processing of goods ormaterials, in whole or in part, whichhave been furnished directly orindirectly by an employer and therafter

to be returned to the latter.

ii. Distribution of Homework

Employer of Homeworkers- anynatural or artificial person who, for hisown account or benefit, or on behalf ofany person residing outside thePhilippines directly or indirectly, orthrough any employee, agent,contractor, sub-contractor; or anyother person:1. Delivers or causes to be delivered

any goods or articles to beprocessed in or about a home andthereafter to be returned or to bedisposed of or distributed inaccordance with his direction; or

2. Sells any goods or articles for thepurpose of having such goods orarticles processed in or about a

home and then repurchases themhimself or through another aftersuch processing.

5. WOMEN

i. Night Work Prohibition (Art.130) General Rule- NO WOMAN,

regardless of age, shall be employed or

permitted or suffered to work, with orwithout compensation in any:1. Industrial undertaking between

10pm and 6am;2. Commercial/ Non-industrial

undertaking between 12mn and6am;

3. Agricultural undertaking at

nighttime unless she is given aperiod of rest of not less than 9consecutive hours.

Exceptions- This prohibitions shallNOT APPLY in any of the followingcases:1. In cases of actual or impending

emergencies caused by seriousaccident, fire, flood, typhoon,earthquake, epidemic, or otherdisasters or calamity, to prevent

loss of life or property, or in cases offorce majeure or imminent dangerto public safety;

2. In cases of urgent work to beperformed on the machineries,equipment or installations, to avoidserious loss which the employerwould otherwise suffer;

3. Where the work is necessary toprevent serious loss of perishable

goods;4. Where the woman employee holds a

responsible position of managerialor technical nature, or where thewoman employee has been engagedto provide health and welfareservice;

5. Where the nature of the workrequires the manual skill anddexterity of women workers and the

same cannot be performed withequal efficiency by male workers;

6. Where the women employees areimmediate members of the familyoperation the establishment orundertaking; and

7. Under other analogous casesexempted by the Secretary of Labor

in appropriate regulations.ii. Facilities for Women (Art.132)

The Secretary of Labor may requireemployers to:1. Provide seats proper for women and

permit them to use the seats whenthey are free from work or duringoffice hours provided the quality ofthe work will not be compromised;

2. Establish separate toilet rooms and

lavatories for men and women andprovide at least a dressing room forwomen;

3. Establish a nursery in theestablishment; and

4. Determine appropriate minimumage and other standards forretirement or termination in specialoccupations such as those of flightattendants and the like.

iii. Maternity Leave Benefits(Art. 133)

Maternity Leave under the SSSLaw- A female member, who need notbe legally married, who has paid for atleast 3 monthly contributions in the 12-month period immediately precedingthe semester of her childbirth ormiscarriage shall be paid a dailymaternity benefit equivalent to 100%of her average daily salary credit for 60


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days or 78 days, in case of caesariandelivery.

Maternity benefits provided herein shallbe paid only for the first four deliveriesor miscarriages;

Maternity benefits like other benefitsgranted by the SSS, are granted in lieuof wages and therefore, may not be

included in computing the employees13th month pay for the calendar year.a. Qualifications for Entitlement:

1. The female employee should beemployed at the time of thedelivery, miscarriage or abortion;

2. The employee shall have notifiedher employer of her pregnancy andthe probable date of her childbirthwhich notice shall be transmitted tothe SSS in accordance with the rules

and regulations in may provide;3. That full payment shall be advanced

by the employer within 30 daysfrom the filing of the maternityleave application; and

4. That payment of daily maternitybenefits have been received.

NOTE: Every pregnant woman in theprivate sector, whether married orunmarried is entitled to the maternity

leave benefits.b. Other Important Conditions: That the SSS shall immediately

reimburse the employer of 100% of theamount of maternity benefits advancedto the employee by the employer uponreceipt of satisfactory proof of suchpayment and legality thereof; and

That if employee member should givebirth or suffer miscarriage without therequired contributions having been

remitted for her by her employer to theSSS, or without the latter having beenpreviously notified the employer of thetime of the pregnancy, the employershall day to the SSS damagesequivalent to the benefits which saidemployee would otherwise have beenentitled to.

c. Extension of Maternity Leave: The maternity leave shall be extended

without pay on account of illnessmedically certified to arise out of thepregnancy, delivery, abortion, ormiscarriage, which renders the womanunit for work, unless she has earnedunused leave credits from which suchextended leave may be charged.

d. PATERNITY LEAVE (RA 8187) Grants paternity leave of 7 days with

full pay, consisting of basic salary, toall married male employees in thepublic and private sector.

Available only for the first 4 deliveriesof the legitimate spouse with whom thehusband is cohabiting; the termdelivery includes childbirth, miscarriageor abortion.

In the event that such leave was notavailed of, said leave shall not be

convertible to cash. Purpose- to enable the husband to

lend support to his wife during theperiod of recovery and/or in thenursing of the newly born child.

d.i. Conditions for Entitlement:1. He is an employee at the time of the

delivery of his child;2. He is cohabiting with his spouse at the

time she gives birth or suffers amiscarriage;

3. He has applied for paternity leave withhis employer;

4. His wife has given birth or suffered amiscarriage; the term wife refers to thelawful wife which means the womanwho is legally married to the maleemployee concerned.

d.ii. Application of Leave:

1. Must be made within a reasonabletime from the expected date ofdelivery by the pregnant spouse;

2. within such period as may beprovided by company rules andregulations or CBA.

Prior application for leave shall NOT berequired in case of miscarriage.

iv. Family Planning Services Employers who habitually employ more

than 200 workers in any locality shall

provide free family planning services totheir employees and their spouseswhich shall include but not limited to,the application or use of contraceptivepills and intrauterine devices.

v. Discrimination Prohibited It shall be unlawful for any employer to

discriminate against any womanemployee with respect to terms andconditions of employment solely on

account of her sex. Acts of Discrimination:

1. Payment of a lesser compensationfor work of equal value.

2. Favoring a male employee over afemale employee solely on theaccount of their sexes.vi. Stipulation Against Marriage

It shall be unlawful for an employer:1. to require as a condition for

employment or continuation of


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employment that a womanemployee shall not get married;

2. to stipulate expressly or tacitly thatupon getting married a womanemployee shall be deemed resignedor separated;

3. to actually dismiss, discharge,discriminate or otherwise prejudice

a woman employee merely byreason of her marriage.vii. Prohibited Acts

It shall be unlawful for an employer:1. To discharge any woman employed

by him for the purpose ofpreventing such woman fromenjoying the maternity leave,facilities and other benefits providedunder the Code;

2. To discharge such woman employee

on account of her pregnancy, orwhile on leave or confinement dueto her pregnancy;

3. To discharge or refuse theadmission of such woman uponreturning to her work for fear thatshe may be pregnant;

4. To discharge any woman or child orany other employee for having fileda complaint or having testified on

being about to testify under theCode.viii. Classification of CertainWomen Workers

Any woman who is permitted to workor suffered to work, with or withoutcompensation, in any night club,cocktail lounge, massage clinic, bar orsimilar establishment, under theeffective control or supervision of theemployer for a substantial period of

time as determined by the Secretary ofLabor, shall be considered as anemployee of such establishment forpurposes of labor and social legislation.

6. HOUSE HELPERS

i. Rights of House- helpers

(Articles 1689-1699, NCC)1. non-assignment to non-householdwork;

2. reasonable compensation (minimumcash wage);

3. lodging, food, and medicalattendance;

4. if under 18 years of age, anopportunity for elementaryeducation (cost of which shall bepart of house helpers

compensation);5. contract for household service shall

not exceed 2 years (renewablehowever from year to year);

6. just and humane treatment;7. right not to be required to work for

more than 10 hours a day (if thehouse helper agrees to workovertime, and there is additionalcompensation, the same is

permissible);8. right to 4 days vacation each month

with pay (if the helper does not askfor the vacation, the number ofvacation days cannot beaccumulated, he is entitled only toits monetary equivalent);

9. funeral expenses must be paid bythe employer if the house helperhas no relatives with sufficient

means in the place where the headof the family lives.

10.termination only for a just cause;11.indemnity for unjust termination of

service;12.employment certification as to

nature and duration of service andefficiency and conduct of the house

helper.ii. Indemnity for UnjustTermination of Service:

1. If the period for household service isfixed, neither the employer not thehouse helper may terminate thecontract before the expiration of theterm, except for a just cause.

2. If the house helper is unjustlydismissed, he or she shall be paidthe compensation already earned

plus that for 15 days by way ofindemnity.

3. If the house helper leaves withoutjustifiable reason, he or she shallforfeit an unpaid salary due him orher not exceeding 15 days.iii. Employment for Certification

Upon the severance of the householdservice relationship, the house helpermay demand from the employer a

written statement of the nature andduration of the service and his or herefficiency and conduct as house helper.

7. MINORS (RA 7610)

i. Minimum Employable Age General Rule- No child below 15 years

old shall be employed.


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Conditions on the Employment of aChild below 15 years old:1. When the child works directly under

the sole responsibility of his parentsor legal guardian who employsmembers of his family only underthe following conditions:

a. employment does not

endanger the childs life,safely, health and morals;b. employment does not impair

the childs normaldevelopment; and

c. the parent/ legal guardianprovides the child with theprimary and/or secondaryeducation prescribed byDepEd.

2. Where the childs employment, or

participation in public entertainmentor information through cinema,theater, radio or television isessential, provided that:

a. employment does not involveadvertisements orcommercials promotingalcoholic beverages,intoxicating drinks, tobaccoand its by products or

exhibiting violence;b. there is written contract

approved by the DOLE; andc. the conditions prescribed for

the employment of minor aremet.

Any person between 15 and 18 yearsold may be employed in any non-hazardous work.

ii. Non-Hazardous Work orUndertaking

One where the employee is notexposed to any risk which constitutesan imminent danger to his safety andhealth.

iii. Hazardous Work Places:1. where the nature of the work

exposes the workers to dangerousenvironmental elements,

contaminants, or work conditions;2. where the workers are engaged inconstruction work, logging, fire-fighting, mining, quarrying, blasting,stevedoring, dock work, deep-seafishing, and mechanized farming;

3. where the workers are engaged inthe manufacture or handling ofexplosive and other pyrotechnicproducts;

4. where the workers use or are

exposed to heavy or power-drivenmachinery or equipment; and

5. where the workers use or areexposed to power-driven tools.

B. TYPES OF EMPLOYEES

i. Definition of Termsa. Managerial employees under Article

82 of the Labor Code-refer to thosewhose primary duty consists of themanagement of the establishment in whichthey are employed or of a department orsubdivision thereof, and to other officersor members of the managerial staff.b. Managerial Employee under Article212 of the Labor Code- is one who isvested with the powers or prerogatives tolay down and execute managementpolicies and/or to hire, transfer, suspend,

lay-off, recall, discharge, assign ordiscipline employees.c. Field personnel- shall refer to non-agricultural employees who regularlyperform their duties away from theprincipal place of business or branch officeof the employer and whose actual hours ofwork in the field cannot be determined

with reasonable certainty.d. Confidential Employee- Confidentialemployees are those who (1) assist or actin a confidential capacity, in regard (2) topersons who formulate, determine, andeffectuate management policies[specifically in the field of labor relations].The two criteria are cumulative, and bothmust be met if an employee is to beconsidered a confidential employee thatis, the confidential relationship must exist

between the employee and his superiorofficer; and that officer must handle theprescribed responsibilities relating to laborrelations.e. Supervisory Employees- are thosewho, in the interest of the employer,effectively recommend such managerialactions if the exercise of such authority isnot merely routinary or clerical in naturebut requires the use of independent

judgment.f. Rank and File Employees- Allemployees not falling within any of theabove definitions are considered rank-and-file employees.

ii. Managerial Employeeunder Labor Standards vs. ManagerialEmployee under Labor Relations

Managerial Managerial


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Employee underLabor Standards

(Art. 82)

Employee underLabor Relations

(Art. 212 m)

Used only forpurposes ofConditions ofEmployment

Used only forpurposes of LaborOrganization

Those whoseprimary dutyconsists of themanagement of theestablishment inwhich they areemployed or of adepartment orsubdivision thereof,and to other officersor members of themanagerial staff.

One who is vestedwith the powers orprerogatives to laydown and executemanagementpolicies and/or tohire, transfer,suspend, lay-off,recall, discharge,assign or disciplineemployees.

Supervisors aremembers of themanagerial staff

Supervisors are notincluded in thisterm

CASES:

A. D. GOTHONG MANUFACTURINGCORPORATION EMPLOYEES UNION-

ALU vs. NIEVES CONFESOR and A.D.GOTHONG MANUFACTURINGCORPORATION G.R. No. 113638November 16, 1999 GONZAGA-REYES

Facts:

Petitioner A. D. Gothong ManufacturingCorporation Employees Union-ALU (Union)filed a petition for certification election in

its bid to represent the unorganized

regular rank-and-file employees ofrespondent A. D. Gothong ManufacturingCorporation (Company) excluding its officestaff and personnel. Respondent Companyopposed the petition as it excluded officepersonnel who are rank and fileemployees. In the inclusion-exclusionproceedings, the parties agreed to the

inclusion of Romulo Plaza and Paul MichaelYap in the list of eligible voters oncondition that their votes are consideredchallenged on the ground that they weresupervisory employees. Both Plaza andYap argued that they are rank-and-fileemployees. Plaza claimed that he was amere salesman based in Cebu, and Yapargued that he is a mere expediter whosejob includes the facilitation of theprocessing of the bills of lading of all

intended company shipments. PetitionerUnion maintains that both Plaza and Yapare supervisors who are disqualified to jointhe proposed bargaining unit for rank-and-file employees. The Med-Arbiter declaredthat the challenged voters Yap and Plazaare rank-and-file employees.

Issue: WON Plaza and Yap are supervisoryemployees for purposes of labor

organization.

Ruling:

The Labor Code recognizes two (2)principal groups of employees, namely, themanagerial and the rank and file groups.Article 212 (m) of the Code provides: (m)Managerial employee is one who is vestedwith powers or prerogatives to lay down

and execute management policies and/or

to hire, transfer, suspend, lay-off, recall,discharge, assign or discipline employees.Supervisory employees are those who, inthe interest of the employer, effectivelyrecommend such managerial actions if theexercise of such authority is not merelyroutinary or clerical in nature but requiresthe use of independent judgment. All

employees not falling within any of theabove definitions are considered rank-and-file employees for purposes of this Book.Under Rule I, Section 2 (c), Book III of theImplementing Rules of the Labor Code, tobe a member of managerial staff, thefollowing elements must concur or co-exist, to wit: (1) that his primary dutyconsists of the performance of workdirectly related to management policies;(2) that he customarily and regularly

exercises discretion and independentjudgment in the performance of hisfunctions; (3) that he regularly anddirectly assists in the management of theestablishment; and (4) that he does notdevote more than twenty percent of histime to work other than those describedabove.

In the case at bench, the Supreme Court

did not disturb the findings of the Med-Arbiter that the petitioner Union failed topresent concrete and substantial evidenceto establish the fact that challenged votersare either managerial or supervisingemployees. Nowhere in the documentaryevidence presented by the Union thattherein is stated about any instance wherethe challenged voters effectivelyrecommended any managerial action


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which would require the use ofindependent judgment.

Petition is denied.

SURIGAO DEL NORTE ELECTRICCOOPERATIVE vs. NLRC AND ELSIEESCULANO G.R. No. 125212 June 28,

1999 YNARES-SANTIAGO

Facts:

A former employee of petitionercooperative, Cosette O. Quinto, sent aletter to its General Manager, petitionerEugenio A. Balugo, informing Balugo of herdecision to be separated with SURNECOdue to her pressing personal problems. Noaction was taken on this matter by eitherpetitioner Balugo or petitionercooperative's Board of Directors. Nearlyfour months later, private respondent ElsieEsculano, being then the Personnel Officerof petitioner cooperative sent a letter topetitioner Balugo regarding Quinto's letter-request, attached to her letter was areport containing her findings andrecommendations. In her attached report,private respondent concluded that

petitioner cooperative had not properlyaccorded Quinto due process beforeterminating her services, enumerating thecircumstances evidencing such lack of dueprocess. Thus, private respondentrecommended that petitioner cooperativegrant Quinto separation pay, otherwise,the latter would be entitled toreinstatement without loss of seniorityrights and other privileges and benefits.

Meanwhile, with no action taken by

petitioner cooperative on her letter-request, Quinto filed a Complaint forIllegal Dismissal against petitionercooperative. Without a doubt, thecomplaint was based largely on the reportsubmitted to petitioner Balugo by privaterespondent Esculano. On account of thefiling of the illegal dismissal case against

petitioner cooperative, based largely onprivate respondent's report, Balugo issueda Memorandum to Esculano in which shewas made to explain on why she made areview of Quintos case even if she was notauthorized to do so and for furnishing thecopy of the report to Quinto. Esculanosubmitted her Written Explanation toBalugo and reasoned out that it wasinherent in her job as Personnel Officer "toassist Management in formulating and

evaluating plans, policies and procedureson personnel related matters, andrecommend to Management and (the)Board of Directors wage, salary and otherbenefits. Petitioner cooperative, however,through its Board of Directors, proceededto act on the case of private respondentterminating the services of the latter.Private respondent filed a Complaint forillegal dismissal. Labor Arbiter declared

private respondent's dismissal as valid andlegal which was set aside by the NLRC.

Issue: WON private respondent wasillegally dismissed.

Ruling:

First, there is no basis for petitionercooperative's charge of serious misconduct

on the part of private respondent.

Misconduct is transgression of someestablished and definite rule of action, aforbidden act, a dereliction of duty, willfulin character, and implies wrongful intentand not mere error in judgment. In thecase at bench, private respondent's reviewof Quinto's case hardly qualifies as seriousmisconduct.As acknowledged by

petitioners, private respondent, asPersonnel Officer, holds a managerialposition. As such, her authority is notmerely routinary or clerical in nature butrequires independent judgment. Indeed,those occupying managerial positions areconsidered vested with a certain amount ofdiscretion and independent judgment. AsPersonnel Officer, private respondent couldvery well take charge of matters involvingemployees, even former ones, and

proceed to make recommendationsthereon. This is precisely what privaterespondent did. To require privaterespondent to wait for managementauthorization before acting on mattersalready obviously within her jobjurisdiction would be tantamount tomaking her a mere rank and file employeestripped of discretionary powers.

Second, private respondent's dismissalcannot be justified on the basis of loss ofconfidence. To be a valid ground fordismissal, loss of trust and confidencemust be based on a willful breach of trustand founded on clearly established facts. Abreach is willful if it is done intentionally,knowingly and purposely, without

justifiable excuse, as distinguished from anact done carelessly, thoughtlessly,heedlessly or inadvertently. It must rest


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on substantial grounds and not on theemployer's arbitrariness, whims, capricesor suspicion, otherwise, the employeewould eternally remain at the mercy of theemployer. In the case at bench, there wasno direct proof that private respondent didfurnish a copy of her report to Quinto. Assuch, petitioners cannot validly rely on loss

of confidence as a ground to dismissprivate respondent.

Petition is dismissed.

LEILANI MENDOZA vs. NLRC andASIAN LAND STRATEGIESCORPORATION G.R. No. 131405 July20, 1999 PANGANIBAN

Facts:

Petitioner Leilani Mendoza worked with theprivate respondent and later, she wasappointed as finance manager of theprivate respondent and her tasks included,among others, custody of anddisbursement of company funds. Petitionerclaims that she was summoned by Ms. Ma.Angela Celeridad, the company's vice-president, who informed her that

management had decided to terminate heremployment Hence, she was told either toresign or face dismissal. Later that daypetitioner alleged that the president of thecompany, Johnny P. Lee, announced thather employment was already terminated.Petitioner lodged her complaint against thecompany for illegal dismissal. Privaterespondent denies having dismissed thepetitioner as no memorandum or letter of

dismissal was issued to her. The company

asserts that it received a complaint fromseveral of its marketing and sales agentsaccusing petitioner of committingdeliberate delays in the payment of theircommission in violation of company policy.They alleged that she refused to releasetheir commissions despite payment of theprice of the properties they had brokered

unless she [was] given a certain amountas her cut. The company also claims thatanother employee of the company, acertain Rufino Pahati, lodged a separatecomplaint against petitioner regarding hisapplication for cash advance. Mr. Pahaticlaimed that petitioner made him apply forcash advance but it was she who took themoney. She promised to pay him back butfailed. Allegedly, the company sent a letterto Mendoza demanding her to explain all

the irregularities imputed to her. NLRCruled in favor of the company.

Issue: WON Mendoza was illegallydismissed.

Ruling:

True, employers cannot be compelledto retain in their service employees

who are guilty of acts inimical to theinterest of the former. True also,management has the right to dismisserring employees as a measure ofself-protection. In the case ofmanagerial employees, employers areallowed a wider latitude of discretionin terminating their employmentbecause they perform functions whichby their nature require the full trust

and confidence of the company.

However, loss of trust and confidencehas never been intended to afford anoccasion for abuse. It cannot be usedarbitrarily, whimsically orcapriciously; it must be supportedwith substantial evidence.Unsubstantiated suspicions,accusations and conclusions of

employers do not provide legaljustifications for dismissingemployees. In case of doubt, suchcases should be resolved in favor oflabor, pursuant to the social justicepolicy of our labor laws and theConstitution. In the case at bench, theact of extorting money from sales agentsin exchange for releasing theircommissions is a serious accusation, butallegation is not proof. The employer has

the burden of proof. However, thecompany failed to present sufficientevidence that petitioner was responsiblefor such abnormality. The relevantevidence for the private respondentconsisted only of the following: (a)Gonzales' commission voucher; (b) theletter-complaint signed by the divisionheads of the Sales Department; (c)Pahatis letter-complaint; (d) the affidavits

of Celeridad, Gonzales and Mendoza; (e)Lee's letter-notice dated June 2, 1995; (f)Celeridad's letter-notice dated June 24,1995; and (g) several cash disbursementvouchers including those of Mendoza andGonzales. While the cash disbursementvoucher and Gonzales' affidavit supportthe claim that her commission wasreleased to another person, they do notshow that petitioner was responsible forsuch irregularity. As finance manager, she


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approved disbursement of the company'sfunds, but the actual payment of cash wasusually the function of the companycashier. Labor tribunals should becautioned against confusing conjecturewith evidence. The absence of petitioner,who failed to contest the charges againsther in the investigation conducted by

private respondent, did not meanadmission of the accusations.

Petition is granted.

SUGBUANON RURAL BANK, INC v s .BIENVENIDO E. LAGUESMA, ANDSUGBUANON RURAL BANK, INC. -ASSOCIATION OF PROFESSIONAL,SUPERVISORY, OFFICE, ANDTECHNICAL EMPLOYEES UNION G.R.

No. 116194. February 2, 2000QUISUMBING

Facts:

Petitioner Sugbuanon Rural Bank, Inc.,(SRBI) is a duly-registered bankinginstitution. Private respondent SRBI-Association of Professional, Supervisory,Office, and Technical Employees Union

(APSOTEU) is a legitimate labororganization affiliated with the TradeUnions Congress of the Philippines (TUCP).DOLE granted Certificate of Registration toAPSOTEU. The union filed a petition forcertification election of the supervisoryemployees of SRBI. SRBI filed a motion todismiss the union's petition on the groundthat the members of APSOTEU-TUCP werein fact managerial or confidential

employees. Petitioner submitted detailed

job descriptions to support its contentionthat the union members are managerialemployees and/or confidential employeesproscribed from engaging in laboractivities. Petitioner argues that thefunctions and responsibilities of theemployees involved constitute the verycore of the bank's business, lending of

money to clients and borrowers,evaluating their capacity to pay, approvingthe loan and its amount, scheduling theterms of repayment, and endorsingdelinquent accounts to counsel forcollection. The union filed its opposition tothe motion to dismiss arguing that itsmembers were not managerial employeesbut merely supervisory employees. Med-Arbiter denied petitioner's motion todismiss. SRBI appealed the Med-Arbiter's

decision to the Secretary of Labor whichwas denied for lack of merit. Thecertification election was ordered.

Issue: WON the members of the union aremanagerial employees and/or highly-placed confidential employees, henceprohibited by law from joining labororganizations and engaging in unionactivities.

Ruling:

Under Article 212 (m), Labor Code:Managerial employee is one who is vestedwith powers or prerogatives to lay downand execute management policies and/orhire, transfer, suspend, lay-off, recall,discharge, assign or discipline employees.Supervisory employees are those who, in

the interest of the employer, effectively

recommend such managerial actions if theexercise of such authority is not merelyroutinary or clerical in nature but requiresthe use of independent judgment. Allemployees not falling within any of theabove definitions are considered rank-and-file employees for purposes of this Book.

In the case at bench, the employees inquestion only had recommendatory powerssubject to evaluation, review, and finaldecision by the bank's management. Thejob description forms submitted bypetitioner clearly show that the unionmembers in question may not transfer,suspend, lay-off, recall, discharge, assign,or discipline employees. Moreover, theforms also do not show that the Cashiers,Accountants, and Acting Chiefs of the

loans Department formulate and executemanagement policies which are normallyexpected of management officers. TheCashiers, Accountant, and Acting Chief ofthe Loans Department of the petitioner didnot possess managerial powers and duties.

Neither can these employees be classifiedas confidential employees. Confidentialemployees are those who (1) assist or act

in a confidential capacity, in regard (2) topersons who formulate, determine, andeffectuate management policies[specifically in the field of labor relations].The two criteria are cumulative, and bothmust be met if an employee is to beconsidered a confidential employee-that is,the confidential relationship must existbetween the employee and his superiorofficer; and that officer must handle the

prescribed responsibilities relating to labor


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relations. Article 245 of the Labor Codedoes not directly, prohibit confidentialemployees from engaging in unionactivities. However, under thedoctrine of necessary implication, thedisqualification of managerialemployees equally applies toconfidential employees. The

confidential-employee rule justifiesexclusion of confidential employeesbecause in the normal course of theirduties they become aware ofmanagement policies relating to laborrelations. It must be stressed,however, that when the employeedoes not have access to confidentiallabor relations information, there isno legal prohibition againstconfidential employees from forming,

assisting, or joining a union.

In the case at bench, petitioner contendsthat it has only 5 officers running its day-to-day affairs. They assist in confidentialcapacities and have complete access to thebank's confidential data. Petitioner'sexplanation, however, does not state whoamong the employees has access toinformation specifically relating to its labor

relations policies. Even Cashier PatriciaMaluya, who serves as the secretary of thebank's Board of Directors may not be soclassified. True, the board of directors isresponsible for corporate policies, theexercise of corporate powers, and thegeneral management of the business andaffairs of the corporation. As secretary ofthe bank's governing body, Patricia Maluyaserves the bank's management, but couldnot be deemed to have access to

confidential information specificallyrelating to SRBI's labor relations policies,absent a clear showing on this matter.Thus, while petitioner's explanationconfirms the regular duties of theconcerned employees, it shows nothingabout any duties specifically connected tolabor relations.


ROBERTO GONZALES vs. NLRC andPEPSI COLA PRODUCTS G.R. No.131653 March 26, 2001 DE LEON

Facts:

Petitioner Roberto Gonzales was anemployee of private respondent PCPPI. Hewas promoted to the position of RouteManager with a post at PCPPI NorthbaySales Office. As Route Manager, he wastasked with the supervision andcoordination of the activities of salesmenservicing the area under his jurisdiction.Subsequently, petitioner was served with anotice of termination of his employment.

His dismissal stemmed from allegedirregularities attributed to him as RouteManager and concurrently as dealer ofPepsi Cola products. Under his dealershipcontract with PCPPI, petitioner wasextended by PCPPI a credit line ofP300,000 payable in 30 days. Asconcessionaire or dealer, petitioner wasentitled to a concession which is the cashequivalent of the value of empty bottles

and its contents given to a dealer who met

the monthly quota requirements in thesale of Pepsi Cola products. Petitioneroperated under the business name of RRStore. Petitioner as proprietor of RR Storepurchased Pepsi Cola products on creditamounting to P116,182.00. The credittransaction was covered by ChargeInvoice. To cover this transaction,

petitioner Gonzales issued a post-datedcheck. Three days before his said post-dated check became due and payable,petitioner issued in favor of respondentPCPPI another post-dated check to coverthe outstanding total debt of P116,182.00.With the issuance of the new post-datedcheck, petitioner ordered Mr. GerryAlhambra, PCPPI salesman servicing RRStore, to issue an official receipt in theamount of P116,182.00 to cover his

account. However, issuance of officialreceipt for post-dated checks is contrary torespondent PCPPI's company policy whichrequires that its official receipt shall beissued only for cash sales and/or currentlydated checks. Nonetheless, GerryAlhambra acceded to his superior, thepetitioner, and issued the official receipt.When salesman Alhambra attempted tosettle his account, the settlement clerk

noticed that there was a discrepancybetween the cash amount declared byAlhambra and the sum actually remitted.Alhambra admitted that petitionerGonzales pressured him to issue theofficial receipt. Alhambra could notlikewise present the post-dated checkissued by respondent Gonzales for thereason that under the company rules andregulations, any post-dated check must becovered by a post-dated check receipt,


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duly signed by Mr. Andy Roxas, the SalesOffice Manager. Petitioner issued a thirdpost-dated check which was signed by thepetitioner himself and not by the SalesOffice Manager who has the sole authorityto issue the same. After investigation andhearing, petitioner was notified of histermination from employment on the

ground of loss of confidence and of havingviolated the company rules andregulations. The Labor Arbiter ruled infavor of petitioner which was reversed byNLRC, hence this petition.

Issue: WON petitioner was illegallydismissed.

Ruling:

Substantive due process, for validity of thepetitioner's dismissal, has likewise beenmet by private respondent PCPPI. As aptlyfound by the NLRC, petitioner wasseparated or terminated by privaterespondent PCPPI from his employmentdue to loss of trust and confidence, whichis a just and valid cause for dismissalunder Article 282(c) of the Labor Code. Wefind the evidence adduced in this case

contrary to petitioner's claim that thequestionable credit sale transaction he wascharged with was in connection with hisbeing a dealer or concessionaire of PCPPIand not as an employee thereof, and thus,there was allegedly no just and valid causeto dismiss him.

Ruling:

Under the Labor Code, an employer canterminate the employment of theemployee concerned for "fraud or willfulbreach by an employee of the trustreposed in him by his employer or dulyauthorized representative." The loss oftrust and confidence must be based on thewillful breach of the trust reposed in the

employee by his employer. Ordinarybreach will not suffice. A breach of trust iswillful if it is done intentionally, knowinglyand purposely, without justifiable excuse,as distinguished from an act donecarelessly, thoughtlessly, heedlessly orinadvertently. Loss of confidence, as a

just cause for termination ofemployment, is premised on the factthat the employee concerned holds aposition of responsibility, trust and

confidence. He must be invested withconfidence on delicate matters suchas the custody, handling, care andprotection of the employer's propertyand/or funds. But in order toconstitute a just cause for dismissal,the act complained of must be "work-related" such as would show theemployee concerned to be unfit tocontinue working for the employer. In

a decided case, it has been held that thetest of managerial status has been definedas an authority to act in the interest of theemployer, which authority is not merelyroutinary or clerical in nature but requiresin dependent judgment.

In the case at bench, petitioner is not anordinary rank-and-file employee. He is aRoute Manager, a managerial levelposition. As managerial employee,

petitioner is tasked to perform key andsensitive functions, and thus he is boundby more exacting work ethics. Recordsshow that maneuvers and machinations onthe questionable credit sale transactioncould not have been consummated by thepetitioner if he was not equipped with theknowledge, as a route manager, of how

the respondent company processes thesekinds of transactions. It was highlyinconceivable for a mere dealer to havedone what petitioner did. First, petitionergave himself a credit extension withoutproper authorization. Second, petitioner,as route manager prevailed upon salesmanAlhambra, his subordinate, over whom heexercises moral and professionalascendancy to carry out his machination.Third, upon the discovery by the

settlement clerk of the fraudulent officialreceipt, petitioner issued another post-dated check together with a post-datedcheck receipt (PDCR) signed by petitionerhimself although he was not authorized todo so. These acts of petitioner are patentlydishonest and militate against the rulesand regulations of his employer, hereinprivate respondent company. Hence, theloss of trust and confidence in him by

private respondent PCPPI.

As a general rule, employers areallowed a wide latitude of discretionin terminating the employment ofmanagerial personnel or those who,while not of similar rank, performfunctions which by their naturerequire the employer's full trust andconfidence. Proof beyond reasonabledoubt is not required. It is sufficient


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that there is some basis for loss ofconfidence, such as when theemployer has reasonable ground tobelieve that the employee concernedis responsible for the purportedmisconduct, and the nature of hisparticipation therein renders himunworthy of the trust and confidence

demanded by his position. This mustbe distinguished from the case ofordinary rank-and-file employees,whose termination on the basis ofthese same grounds requires a higherproof of involvement in the events inquestion; mere uncorroboratedassertions and accusations by theemployer will not suffice.

In the present case, PCPPI has sufficiently

shown that petitioner has becomeunworthy of the trust and confidencedemanded of his position. Petitionerbetrayed his employer's trust andconfidence when he instigated theissuance by his subordinate salesman ofan official receipt for his post-dated checkwhereby petitioner could have evadedpayment to private respondent PCPPI ofhis debt amounting to P116,182.00. These

acts committed by petitioner adverselyreflected on his integrity. As RouteManager he disregarded the privaterespondent company's rules and regulationprohibiting the issuance of official receiptfor post-dated check payment unless thesame is done by the Sales Office Manager.The fact the private respondent PCPPIultimately suffered no monetary damageas petitioner subsequently settled hisaccount is of no moment. This was not the

reason for the termination of hisemployment in the respondent companybut the anomalous scheme he engineeredto cover up his past due account, whichconstitutes a clear betrayal of trust andconfidence.


C. WORKING CONDITIONS ANDWORK PERIODS

a. Coverage (Art. 82) General Rule- Title I, Book III of the

Labor Code dealing with hours of work,weekly rest periods, holidays, serviceincentive leaves and service charges,covers all employees in allestablishments, whether for profit or

not. Exceptions:

1. Government employees;2. Managerial employees;3. Officers and members of the

managerial staff;4. Field Personnel;5. Members of the family of the

employer who are dependent onhim for support;

6. Domestic Helpers;7. Persons on the Personal Service of

Another;8. Workers Paid by Result

TYPE OFEMPLOYEE

REASON WHYNOT COVERED

GovernmentEmployees,including thoseemployed in GOCCs

Because terms andconditions ofemployment aregoverned by Civil

not incorporatedunder theCorporation Code

Service Law and itsIRR

ManagerialEmployees

Because they areemployed by reasonof their specialtraining, experienceor knowledge. The

value of their workcannot be measuredin terms of hours.

Non-AgriculturalField Personnel

Because they are ontheir own in thefield and thenumber of hours ofactual work theyrender cannot bereasonablyascertained; it

would be grosslyunfair to require theemployer to paythem benefits suchas overtimecompensation.

Members of theFamily of theemployer who aredependent upon

him for support

The amounts givenby the employer byway of support mayfar exceed the

benefits to whichthe employee isentitled under theprovisions of theTitle.

Domestic Helpersand persons in thepersonal serviceof another

Terms andconditions ofemployment aregoverned by theprovisions of

Chapter III, Title


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III, Book III, LaborCode.

Workers who arepaid By Results,such as those onpiece rates or taskbasis

Their compensationis based on thework accomplishedand not on the timethey spend inaccomplishing the

work.

The aforementioned employees are notentitled to:1. overtime pay;2. premium pay for rest days and

holidays;3. night shift differential pay;4. holiday pay;5. service incentive leave;6. service charges

Government Employees- refers onlyto employees of government agencies,instrumentalities or politicalsubdivisions and of governmentcorporations that are NOT incorporatedunder the Corporation Code (those thathave original charters).

Workers Paid on Piece-Rate Basis-those who are paid a standard amountfor every piece or unit of work

produced that is more or less regularlyreplicated, without regard to the timespent in producing the same.

Workers Paid By Result- those whoare paid based on the work completedand not on the time spent in working.

Field Personnel- non-agriculturalemployees who regularly perform theirduties away from the principal place ofbusiness or branch office of theemployer and whose actual hours of

work in the field cannot be determinedwith reasonable certainty.

They work away from directsupervision of the employer.

Domestic Helpers/ PersonsRendering Personal Services- thosewho:1. perform services in the employers

home which are usually necessaryand desirable for the maintenanceor enjoyment thereof; or

2. minister to the personal comfort,convenience, or safety of theemployer, as well as the membersof the employers household.

b. Normal Hours of Work(Art. 83)

The normal hours of work of anemployee shall not exceed 8 hours aday.

Health personnel in government serviceare excluded from the coverage of Arts.82- 96, Labor Code. Their work hours,NSD, and other employment benefitsare specified in RA 7305.

i.Purposes of the provisions

governing hours of work:1. to safeguard the health and welfare

of the laborer; and2. to minimize unemployment by

utilizing different shifts.NOTES: It is not prohibited to have normal

hours of work of less than 8 hours aday. What the law regulates is workhours exceeding 8 hours a day.

8-hour labor law prescribes themaximum but not the minimum.Therefore, part-time work, or a dayswork of less than 8 hours is notprohibited.

ii. Normal Hours of Work ofHealth Personnel:

For health personnel in cities and

municipalities with a population of atleast 1M or in hospitals and clinics witha bed capacity of at least 100: Regular office hours shall be 8 hours

a day for 5 days a week, or 40hours a week, exclusive of time formeals.

In case of exigencies, they maywork for 6 days or for 48 hours, butthey shall be entitled to anadditional compensation of at least

30% of their regular wage for workperformed on the 6th day.

It is possible for an employee to workfor 2 calendar days (e.g. Marks workschedule is from 10pm of Monday up to6am of Tuesday, his work day covers 2calendar days).

c. Hours Worked (Art. 84)

Hours worked shall include:1. all time during which an employee is

required to be on duty or to be at aprescribed workplace;

2. all time during which an employee issuffered or permitted to work; and

3. rest periods of short durationsduring working hours.

NOTE: Meal period of less than 20minutes, becomes only a rest period and isthus considered as work time.


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i. Principles in DeterminingHours Worked:

1. All hours are hours worked whichthe employee s required to give to hisemployer, regardless of whether ornot such hour are spent in productivelabor or involve physical or mentalexertion.

2. An employee need not leave thepremises of the workplace in orderthat his rest period shall not becounted, it being enough that hestops working, may rest completelyand may leave his workplace, to goelsewhere whether within or outsidethe premises of his workplace.

3. If the work performed wasnecessary or it benefited theemployer or the employee could not

abandon his work at the end of hisnormal working hours because he hadno replacement, all time spent forsuch work shall be considered ashours worked if the work is with theknowledge of his employer orimmediate supervisor.

4. The time during which an employeeis inactive by reason of interruptionsin his work beyond his control shall be

considered time worked either if theimminence of the resumption of workrequires the employees presence atthe place of work or if the interval istoo brief to be utilized effectively andgainfully in the employees owninterest.

ii. Rules on Hours of Worka. Waiting Time Considered as hours worked if waiting:

1. is an integral part of his work; or

2. the employee is required orengaged by the employer to wait.

3. when employee is required toremain on call in the employerspremises or so close thereto that hecannot use the time effectively andgainfully for his own purpose.

b. Working while on Call

When employee is required to remainon call in the employers premises or soclose thereto that he cannot use thetime effectively and gainfully for hisown purpose.

However, if he is not required to leavework at his home or with companyofficials where he may be reached, heis not considered working while on call.

ENGAGED TO

WAIT

WAITING TO BE

ENGAGEDWhen waiting is anintegral part of thejob, the time spentwaiting iscompensable.

Idle time is notworking time; it isnot compensable.

Example:Mark works as adriver and his taskis to drive a truck to

Ilocos to load graveland sand. Whilegravel is beingloaded, he engagedhimself in amahjong sessionand then slept. Isthe time spentplaying and sleepingcompensable?

Example:Spencer works as aFlorida Transit busdriver. His route is

from Pagudpud toManila, leaving at6am and arriving at6pm. He iscompletely relievedfrom all duty until8pm, when he againgoes on duty for thereturn trip toPagudpud. Is hisidle time working

Answer:Yes, because he isengaged to wait forwaiting is anintegral part of thejob.

time?

Answer:No, because duringhis idle time, he isspecifically relievedfrom all duty. He ismerely waiting to

be engaged.

iii. Preliminary and PostliminaryActivities

Compensable when:1. controlled or required by employer;2. are pursued necessarily and

primarily for the employers benefit Preliminary- before work (e.g.

preparation for business presentations)

Postliminary- after actual work (e.g.overtime)

iv. Travel Time

Travel fromHome to

Work

Travel thatis All in

Days Work

TravelAway from

Home

Normal travelfrom home to

work which isnot worktime

The timespent by an

employee intravel aspart of hisprincipalactivity, liketravel fromjobsite tojobsiteduring theworkday.

Travel thatkeeps an

employeeaway fromhomeovernight.

General Compensable Considered


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Rule- notcompensableException-where theworker ismade towork on anemergency

call andtravel isnecessary inproceeding totheworkplace,the timespent ontravel iscompensable.

and must becounted ashoursworked.

as worktime whenit cutsacross anemployeesworkday(because itsubstitutes

for thehours thattheemployeeshould havebeen in theoffice.

NOTE: In travel from home to work, ifsame is via shuttle service sponsored bythe company, travel time is notcompensable because service is for thebenefit of the employee.

In travel away from home, ifinstruction was given by the employer tothe employee to go to a warehouse and togo back to the main office afterwards, thetime traveled is considered as hours

worked; however, if instead of going backto the office, the employee went home,only the travel to the warehouse isconsidered as hours worked.

v. Power Interruptionsa. First 20 minutes is compensable;b. Succeeding minutes not compensable,but is despite the lapse of the first 20minutes the employees are required to

stay in their workplaces, such time iscompensable.

vi. Semestral Break of Teachers

Compensable hours worked for it is aform of interruption beyond theircontrol.

Only for regular full-time teachers.(University of Pangasinan Faculty Unionvs. University of Pangasinan; February20, 1984)

vii. Lectures, Meetings, Trainings,Programs

Not counted as working time if all thefollowing conditions are met:1. attendance is outside of the

employees regular working hours;2. attendance is in fact voluntary; and3. employee does not perform any

productive work during suchattendance.

viii. Work Hours of Seamen

Presence on board for more than 8hours a day is required by the nature of

their service. Conditions to be satisfied before a

seaman be entitled to overtime pay;1. Actual rendition of overtime work.2. Submission of sufficient proof that

said work was actually performed.

c. Meal Periods (Art. 85)

1. Meal periods should not be less than60 minutes, and is time-off/non-compensable.

2. Under specified cases, may be lessthan 60 minutes but should not beless than 20 minutes and must bewith full pay.

3. If less than 20 minutes, it becomesonly a rest period and is thusconsidered as work time.

NOTE: The employee must be completelyrelieved from duty. Otherwise, it iscompensable as hours worked. Mealtime is not compensable,

EXCEPT:1. where the lunch period or meal time

is predominantly spent for theemployers benefit; or

2. where it is less than 60 minutes.

i. Shortened Meal Break UponEmployees Request

Employees may request that their mealperiod be shortened so that they canleave work earlier than the previouslyestablished schedule.

Requisites:1. employees voluntarily agree in

writing to a shortened meal period

and are willing to waive theovertime pay for such shortenedmeal;

2. there will be no diminutionwhatsoever in the salary and otherfringe benefits of the employeesexisting before the effectivity of theshortened meal period;

3. the work of the employees does notinvolve strenuous physical exertion


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and they are provided withadequate coffee breaks;

4. the value of benefits is equal to thecompensation due them for theshortened meal period;

5. overtime pay will become due anddemandable if ever they arepermitted or made to work beyond4:30pm.

6. the arrangement is of temporaryduration.

d. Night Shift Differential(Art. 86)

i. Concept Additional compensation ofnot less

than 10% of an employees regularwage for every hour of work done

between 10pm and 6am, whether ornot such period is part of the workersregular shift.

If work done between 10pm and6am is overtime work, then the10% night shift differential shouldbe based on the overtime rate.

Not Waivable- Additionalcompensation for nighttime work isfounded on public policy. (Mercury

Drug vs. Dayao, GR No. L-30452,September 30, 1982)

ii. Computation of Night ShiftPay

1. Where night shift (10pm to 6am) workis Regular Work:

a. On an ordinary day- Plus 10%of the basic hourly rate or a total of 110%of the basic hourly rate.

b. On a rest day, special day orregular holiday- Plus 10% of the regularhourly rate on a rest day, special day orregular holiday or a total of 110% of theregular hourly rate.NOTE: Since special days and regularholidays are calendar day (24 hour periodfrom 12 midnight to 12 midnight of thefollowing day), the night shift is either cut-off or starts only at 12 midnight. Hence,the night shift pay for such days may bedetermined by the hour on the basis of thehourly rate not the daily rate.2. Where night shift (10pm to 6am) workis Overtime Work:

a. On an ordinary day- Plus 10%of the overtime hourly rate on an ordinaryday or a total of 110% of the overtimehourly rate on an ordinary day.

b. On a rest day/special day/ aregular holiday- Plus 10% of theovertime hourly rate on a rest day/specialday/ regular holiday.

iii. IllustrationDaily Wage: P1000Work Schedule: 6pm to 2amNight Shift Hours: 4 hoursStep 1: Get Hourly Wage Rate (HWR) by

dividing the Daily Wage Rate (DWR) tonumber of Working Hours (WH)HWR= DWR WHP1000 8 hrs. = P125 HWR

Step 2: Get the 10% of HWRP125 HWR x .10= P12. 50

Step 3: Compute NSD by multiplying the10% of HWR to no. of Hours Performed

between 10pm to 6am (night shift hours;NSH)NSD= 10% of HWR x NSHP125 HWR x .10 = P12.50

x 4 hrs= P 50 NSD

Step 4: To get the Total Wage Earned forthe Day:Get the Wage Earned for the Day (WED)by multiplying HWR to number of WH andthen add it to the NSDWED= [HWR x WH] + NSDP125 x 8 hrs. = P1000

+ P 50 NSD= P 1050 Total Wage

Earned for the day

e. Overtime Work (Art. 87)

Overtime Pay- additionalcompensation for work performedbeyond 8 hours within the workers 24-hors workday regardless of whether thework covers 2 calendar days.

The employee is paid for the overtimework on additional compensationequivalent to his regular wage plus atleas 25% thereof.

Overtime work performed on a holidayor rest day shall be paid an additionalcompensation equivalent to the rate ofthe first 8 hours on a holiday or restday plus at least 30% thereof.

Premium Pay- is additionalcompensation for work rendered by theemployee on days when normally heshould not be working such as specialholidays and weekly rest day.


20/20

60 | B i n k y

Work Day- the 24-hour period whichcommences from the time theemployee regularly starts to work (e.g.if the worker starts to work 8am today,the workday is from 8am today to 8amtomorrow).

The minimum normal working hoursfixed by law need not be continuous toconstitute the legal working day, solong as it is within the work day.

Rationale- The employee is given OTpay because he is made to work longerthan what is commensurate with hisagreed compensation for the staturorilyfixed of voluntarily agreed hours oflabor he is supposed to do.

Waiver of Overtime Pay- As a rule,no waiver of overtime pay whetherexpress or implied. Any contrary

stipulation is null and void, as it isintended to benefit laborers andemployees.

Exceptions:1. When the waiver is med in

consideration of benefits andprivileges which may be more thatwhat will accrue to them in overtimepay (Meralco Workers Union vs.Meralco; GR No. L- 11876, May 29,

1959).2. Compressed workweek proposed byemployees. This is allowed onlyunder the following conditions:a. It is voluntary on the part of

the worker;b. There will be no diminution of

the weekly or monthly take-homepay and fringe benefits of theemployee.

c. The value of the benefits thatwill accrue to the employees underthe proposed schedule is morethan or at least commensuratewith the one-hour OT pay that isdue them during weekdays basedon the employees quantification;

d. The work does not involvestrenuous physical exertion andemployee must have adequaterest periods; and

e. The arrangement is oftemporary duration.

i. Factual & Legal Basis for Claim As a rule, express instruction from the

employer to the employee to renderovertime work is not required for theemployee to be entitled to overtimepay. It is sufficient that the employee is

permitted or suffered to work.NOTE: Meal periods during overtime workis not given to workers performingovertime for the reason that OT work isusually for a short period ranging from 1to 3 hours and to deduct from the same 1full hour as meal period would reduce tonothing the employees OT work. Basis of Overtime- Regular Basic

Wage includes cash wage only, without

any deduction on account of facilitiesprovided by the employer.ii. Rules: Work performed beyond 8 hours

a day must be paid an additionalcompensation equivalent to theemployees regular wage plus atleast 25% thereof.

Work performed beyond 8 hourson a holiday or rest day shall bepaid an additional compensation

equivalent to the rate for thefirst 8 hours on a holiday or restday plus 30% thereof.

iii. Illustration:Daily Wage: P1000Work Schedule: 9am to 6pm (inclusive of1 hour meal period)OT: 6pm to 1am

Step 1: Get HWRP1000/ 8 hrs. = P125

Step 2: Get Over Time Premium Pay(OTP) by adding the 25% of HWR to HWRand multiply it to number of Over TimeHours (OTH)OTP= [25% of HWR + HWR] x OTHP125 x .25 = P 31. 25 (25% of HWR)

+ P125 (HWR)= P 156. 25

x 7 hours (OTH)= P 1093. 75 (OTP)

Step 3: Compute Total wage earned forthe day by adding the OTP to Daily Wage

P 1093. 75 OTP+ P 1000 daily wage= P 2093. 75 Total wage earned for

the day

Article 88. Undertime Not Offset byOvertime- Undertime work on anyparticular day shall not be offset byovertime work on any other day.Permission given to the employee to go onleave on some other day of the week shallnot exempt the employer from paying theadditional compensation required in thisChapter. Article 89.

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