Part II

Question 1

Art. 35

Answer 1

Suspension and/or Cancellation of License or Authority. The Minister of Labor shall have the power to suspend or cancel any license or authority to recruit employees for overseas employment for violation of rules and regulations issued by the Ministry of Labor, the Overseas Employment Development Board, or for violation of the provisions of this and other applicable laws, General Orders and Letters of Instructions.

Question 2

Non-licensee or non-holder of authority

Answer 2

Any person, corporation or entity which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor, or whose license or authority has been suspended, revoked or cancelled by the POEA or the Secretary.

Question 3

Who can suspend or cancel the license

Answer 3

1. DOLE Secretary

2. POEA Administrator

Question 4

The power to suspend or cancel any license or authority to recruit employees for overseas employment is ______ vested with the POEA and the Secretary of Labor.

Answer 4

concurrently

Question 5

Prohibited acts under Art. 34

Answer 5

It shall be unlawful for any individual, entity, licensee, or holder of authority:

a. to charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance
b. to furnish or publish any false notice or information or document in relation to recruitment or employment
c. to give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code
d. to induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment
e. to influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency
f. to engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines
g. to obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives
h. to fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor
i. to substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor
j. to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency
k. to withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations

Question 6

Regulatory and visitorial powers of the DOLE Secretary

Answer 6

Regulatory

• to restrict and regulate recruitment and placement activities of all agencies
• agencies within the coverage of this Title
• to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title

Visitorial

• power to inspect the premises, books of accounts and records of any person or entity covered by this Title
• can require agencies to submit reports regularly on prescribed forms
• can act on violations of any provisions of this Title

Question 7

Art. 36

Answer 7

The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title.

Question 8

Art. 37

Answer 8

The Secretary of Labor or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violations of any provisions of this Title.

Question 9

Can the Secretary of Labor and Employment issue a warrant of arrest?

Answer 9

No. In the old case of Salazar vs. Achacoso, it was declared that Art. 38 of the LC is unconstitutional and that the Secretary of Labor and Employment cannot issue a warrant of arrest.

Question 10

Which of the following acts is NOT part of the regulatory and visitorial power of the Secretary of Labor and Employment over recruitment and placement agencies? The power to

(A) order arrest of an illegal recruiter
(B) inspect premises, books and records
(C) cancel license or authority to recruit
(D) garnish recruiter’s bond

Answer 10

A

Question 11

The visitorial and enforcement powers of the DOLE Regional Director to order and enforce compliance with labor standard laws can be exercised even when the individual claim exceeds P5,000.00. T or F.

Answer 11

True. The visitorial and enforcement powers of the DOLE Regional Director to order and enforce compliance with labor standards laws can be exercised even when the individual claims exceed P5,000.00 The authority under Article 128 may be exercised regardless of the monetary value involved. Under Article 129, however the authority is only for claims not exceeding P5,000.00 per claimant.q

Question 12

Inggo is a drama talent hired on a per drama “participation basis” by DJN Radio Company. He worked from 8:00 a.m. until 5:00 p.m., six days a week, on a gross rate of P80.00 per script, earning an average of P20,000.00 per month. Inggo filed a complaint before the Department of Labor and Employment (DOLE) against DJN Radio for illegal deduction, non-payment of service incentive leave, and 13th monthpay, among others. On the basis of the complaint, the DOLE conducted a plant level inspection.

The DOLE Regional Director issued an order ruling that Inggo is an employee of DJN Radio, and that Inggo is entitled to his monetary claims in the total amount of
P30,000.00. DJN Radio elevated the case to the Secretary of Labor who affirmed the order. The case was brought to the Court of Appeals. The radio station
contended that there is no employer-employee relationship because it was the drama directors and producers who paid, supervised, and disciplined him.
Moreover, it argued that the case falls under the jurisdiction of the NLRC and not the DOLE because Inggo’s claim exceeded P5,000.00.

a. May DOLE make a prima facie determination of the existence of an employer-employee relationship in the exercise of its visitorial and enforcement powers?

b. If the DOLE finds that there is an employee-employer relationship, does the case fall under the jurisdiction of the Labor Arbiter considering that the claim of Inggo
is more than P5,000.00. Explain.

Answer 12

a. Yes. Pursuant to Article 128 (b) of the Labor Code, the DOLE may do so where the prima facie determination of employer-employee relationship is for the exclusive purpose of securing compliance with labor standards provisions of said Code and other labor legislation.

The DOLE, in the exercise of its visitorial and enforcement powers, somehow has to make a determination of the existence of an employer-employee
relationship. Such determination, however, cannot be coextensive with the visitorial and enforcement power itself. Indeed, such determination is merely preliminary,
incidental and collateral to the DOLE’s primary function of enforcing labor standards provisions.

b. No. As held in the case of Meteoro v. Creative Creatures, Inc., the visitorial and enforcement powers of the Secretary, exercised through his representatives, encompass compliance with all labor standards taws and other labor legislation, regardless of the amount of the claims filed by workers; thus, even claims exceeding P5,000.00.

Question 13

The Bantay-Salakay Security Agency (BSSA) employed ten security guards and assigned them to Surot Theater which contracted BSSA for its security needs.

On November 3. 1988, the ten (10) security guards of BSSA addressed to the Office of the President, a letter- complaint against their employer for non-compliance with R.A. 6640 providing for an increase in the statutory minimum wage and salary rates of employees and workers in the private sector. The letter was endorsed to the Secretary of Labor who, in turn, referred the matter to the Regional Director of Makunat City in Region XII where the ten (10) security guards reside and where their employer conducts business.

The Office of the Regional Director conducted an investigation and called for a hearing with all the parties present. Therefrom, the Regional Director found that there were indeed violations committed by BSSA
against the ten (10) security guards, such as underpayment of wages, non-integration of cost of living allowance, underpayment of 13th-month pay and
underpayment of five (5) days incentive pay BSSA and Surot Theater were directed to comply with the labor standards and ordered BSSA and Surot Theater to pay
jointly and severally to the ten (10) security guards their respective claim of P10,000.00 each or an aggregate amount of PI00,000.00. BSSA and Surot Theater
filed a Petition for Certiorari before the Supreme Court seeking to annul the decision of the Regional Director on the ground of grave abuse of discretion in assuming jurisdiction over the case. Will the Petition for Certiorari prosper? Decide with reason.

Answer 13

It is to be noted that the Regional Director assumed jurisdiction before the effectivity of RA No. 6715. Thus, applying Art. 128 of the Labor Code, the petition for certiorari will not prosper.

Under said article of the Labor Code, the Secretary of Labor or his duly authorized representatives - and Regional Directors are duly authorized representatives - have visitorial and enforcement powers. Thus, a Regional Director not only has visitorial powers, i.e., to visit the premises of an employer and examine his records, he also has enforcement powers, i.e. based on the findings of labor regulation officers or industrial
safety engineers made in the course of inspection. A Regional Director has the power to order and administer, after due notice and hearing compliance with the labor standards, provisions of the Labor Code. Thus, he could issue writs of execution to the appropriate authority for the enforcement of his orders, except in cases where the employer contests the findings of the labor regulation officer and raises issues which cannot be resolved without considering evidentiary matters that are not verifiable in the normal course of inspection.

Therefore, pursuant to Art. 128 of the Labor Code, the Regional Director was only exercising his visitorial and enforcement powers in the case of BSSA and Surot Theater. Thus, he has jurisdiction to do what he did.In a dissenting opinion. Chief Justice Narvasa said that even after the effectivity of RA No. 6715, the Regional Director has jurisdiction to act on claims exceeding P5.000.00. The petition for certiorari will prosper under Rep. Act No. 6715. its provision limiting the
power of Regional Directors to money claims not exceeding P5,000.00 per employee, the Regional Director no longer has the power to act on money claims exceeding P5.000.00 per employee, even if the same power exercised pursuant to his visitorial and
enforcement power under the Labor Code (Art. 128) where the P5.000 limitation is not found.

Question 14

The Regional Director or his representative may be divested of his enforcement and visitorial powers under the exception clause of Article 128 of the Labor Code
and, resultantly, jurisdiction may be vested on the labor arbiter when three (3) elements are present. Which of the following is not one of the three (3) elements?

a. Employer contests the findings of the labor regulations officers and raises issues thereon;
b. In order to resolve any issues raised, there is a need to examine evidentiary matters;
c. The issues raised should have been verifiable during the inspection;
d. The evidentiary matters are not verifiable in the normal course of inspection.

Answer 14

c. The issues raised should have been verifiable during the inspection

Question 15

It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/ or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labor and Employment. T or F.

Answer 15

True. Art. 22

Question 16

Executive Order No. 857, as amended, prescribes the percentages of foreign exchange remittance ranging from _____ of the basic salary, depending on the worker’s kind of job. DOLE figures for 1998-2000 show that the annual remittances have breached the US$6 billion level, inspiring the government to call the OFWs “Mga Bagong Bayani” (New Heroes).

Answer 16

50 to 80%

Question 17

Percentages of foreign exchange remittance required from various kinds of migrant workers

Answer 17

1. Seaman or mariner – 80% of basic salary
2. Workers for Filipino contractors and construction companies – 70%
3. Doctors, engineers, teachers, nurses and other professional workers whose contract provide for free board and lodging – 70%
4. All other professional workers whose employment contracts do not provide for free board and lodging facilities – 50%
5. Domestic and other service workers – 50%
6. All other workers not falling under the aforementioned categories – 50%
7. Performing artists – 50%

[E.O. 857]

Question 18

Individuals exempted from the mandatory remittance requirement

Answer 18

1. The immediate family members, dependents or beneficiaries of migrant workers residing with the latter abroad
2. Filipino servicemen working within US military installations
3. Immigrants and Filipino professionals working with the United Nations and its agencies or other specialized bodies

Question 19

As a rule, direct hiring of migrant workers is not allowed. What are the exceptions? Explain your answer.

Answer 19

The exceptions are: direct hiring by members of the diplomatic organizations, international organizations, heads of state and government officials with the rank of at least deputy minister, and such other employers as may be allowed by the Secretary of Labor [Article 18].

The reasons for the ban on direct hiring are:
a. a worker hired directly by a foreign employer without government intervention may not be assured of the best possible terms and conditions of employment.

b. a foreign employer must also be protected. Without government intervention, a foreign employer may be entering into a contract with a Filipino who is not qualified to do the job

c. the mandatory requirement for remittance to the Philippines of a portion of the worker’s foreign exchange earnings can easily be evaded by the
worker.

Question 20

Other prohibited acts not mentioned in Art. 34

Answer 20

It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority:

a. to charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance
b. to furnish or publish any false notice or information or document in relation to recruitment or employment
c. to give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA
d. to include or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment
e. to influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers’ organization
f. to engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines
g. to fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment
h. to substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment
i. for an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of travel agency
j. to withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations
k. failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment
l. failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker’s fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage
m. to allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency [Sec 5]

In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts: RA 10022

1. Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan
2. Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons
3. Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter’s employment contract has been prematurely terminated through no fault of his or her own
4. Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner
5. Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except for recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings
6. For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers’ applications
7. For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker’s insurance coverage. (Sec. 6, RA 8042 as amended)

Question 21

Elements of simple illegal recruitment

Answer 21

1. The person charged with the crime must have undertaken recruitment activities defined under Art. 13 (b) or prohibited activities defined under Art. 34; and
2. The said person does not have a license or authority to do so. [Art. 38, LC]

Question 22

Salazar v. Achacoso

Answer 22

FACTS: Public respondent issued a Closure and Seizure Order No. 1205 to petitioner after knowing that the latter had no license to operate a recruitment agency and the seizure of the documents and paraphernalia are being used or intended to be used as means of committing illegal recruitment. Petitioner filed for the return of the confiscated materials with the contention that these were seized against her will and were done with unreasonable force and intimidation.

ISSUE: Whether or not the POEA or the Secretary of Labor can validly issue warrants of search and seizure

RULING: No. It is only a judge who may issue warrants of search and arrest, neither it may be done by a mere prosecuting body. The Secretary of Labor, for not being a judge must go through the judicial process.

Further, the Supreme Court held that a warrant must identify clearly the things to be seized, otherwise, it is null and void.

Question 23

Employees not covered in Book III Title 1

Answer 23

1. Government employees
2. Managerial employees
3. Other officers or members of a managerial staff
4. Domestic servants (now Kasambahay)
5. Persons in the personal service of another
6. Workers paid by results
7. Field personnel
8. Members of the family of the employer

Question 24

Hours of work

Answer 24

All hours are hours worked which the employee is required to give to his employer, regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion

Question 25

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, rests completely and leaves his workplace to go elsewhere, whether within or outside the premises of his workplace. T or F.

Answer 25

True.

Question 26

If the work performed was necessary or it benefited 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. T or F.

Answer 26

True.

Question 27

The time during which an employee is inactive by reason of interruptions in his work beyond his control shall not be considered working time either if the imminence of the resumption of work requires the employee’s presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employee’s own interests. T or F.

Answer 27

False. It shall be considered working time.

Question 28

Compensable time

Answer 28

a. all time during which an employee is required to be on duty or to be at the employer’s premises or to be at a prescribed workplace
b. all time during which an employee is suffered or permitted to work

Question 29

Normal hours of work

Answer 29

Article 83 of the Labor Code enunciates the general rule that the total number of working hours of a worker or employee shall not exceed eight (8) hours. This eight (8) hour period is called the normal hours of work.

Question 30

Exceptions to 8-hour law

Answer 30

Health personnel in:
1. Cities and municipalities with a population of at least 1,000,000 OR

2. Hospitals and clinics with a bed capacity of at least 100 shall hold regular office hours for 8 hours a day, for 5 days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for 6 days or 48 hours, in which case, they shall be entitled to an additional compensation of at least 30% of their regular wage for work on the sixth day.

Question 31

Health personnel

Answer 31

1. resident physicians
2. nurses
3. nutritionists
4. dietitians
5. pharmacists
6. social workers
7. laboratory technicians
8. paramedical technicians
9. psychologists
10. midwives
11. attendants
12. all other hospital or clinic personnel (medical secretaries)

Question 32

Compressed work week

Answer 32

A situation where the normal workweek is reduced to less than six (6) days but the total number of work-hours of 48 hours per week remains. The normal workday is increased to more than eight (8) hours but not to exceed twelve (12) hours, without corresponding overtime premium.

Question 33

Department Advisory No. 02, Series of 2004

Answer 33

The government acknowledges that the work process is ever-changing. As such, DOLE encourages employers and employees to enter into voluntary agreements adopting the Comprised Work Week Scheme.

Anchored on voluntary basis and conditions mutually acceptable to both the employer and the employees, it is recognized as beneficial in terms of reduction of business costs and helps in saving jobs while maintaining competitiveness and productivity in industries.

Question 34

DOLE shall recognize CWW schemes adopted in accordance with the following
(Conditions)

Answer 34

1. The CWW scheme is undertaken as a result of an express and voluntary agreement of majority of the covered employees or their duly authorized representatives. This agreement may be expressed through collective bargaining or other legitimate workplace mechanisms of participation such as labor-management councils, employee assemblies or referenda
2. In firms using substances, chemicals and processes or operating under conditions where there are airborne contaminants, human carcinogens or noise prolonged exposure to which may pose hazards to the employees’ health and safety, there must be a certification from an accredited health and safety organization or practitioner or from the firm’s safety committee that work beyond eight (8) hours is within the threshold limits or tolerable levels of exposure, as set in the Occupational Safety and Health Standards (OSHS)
3. The employer shall notify the DOLE, through its Regional Office having jurisdiction over the workplace, of the adoption of the CWW scheme. The notice should be made in DOLE CWW Report Form

Question 35

Effects of CWW Scheme

Answer 35

1. Unless there is a more favorable practice existing in the firm, work beyond eight (8) hours will not be compensable by overtime premium provided the total number of hours worked pet day shall not exceed twelve (12) hours. In any case, any work performed beyond twelve (12) hours a day or forty-eight (48) hours a week shall be subject to overtime pay
2. Consistent with Article 852 of the Labor Code, employees under a CWW scheme are entitled to meal periods of not less than sixty (60) minutes. Nothing, however, shall impair the right of employees to rest days as well as to holiday pay, rest day pay or leaves in accordance with law or applicable CBA or company practice
3. Adoption of the CWW scheme shall in no case result in diminution of existing benefits. Reversion to the normal eight-hour workday shall not constitute a diminution of benefits. The reversion shall be considered a legitimate exercise of management prerogative provided that the employer shall give the employees prior notice of such reversion within a reasonable period of time

Question 36

One hour meal period should be considered as overtime work after the deduction of 15 minutes for eating. T or F.

Answer 36

True. Meal breaks are considered working hours if the employees are required to be on call during such hour.

Question 37

Overtime pay rates

Answer 37

For overtime work performed on:

a. ordinary days - plus 25% of the basic hourly rate
b. on a rest day or special day - plus 30% of the basic hourly rate which includes 30% additional compensation as provided in Article 93 [a] of the Labor Code
c. on a rest day which falls on a special day - plus 30% of the basic hourly rate which includes 50% additional compensation as provided in Article 93 [c] of the Labor Code
d. overtime on a regular holiday - plus 30% of the basic hourly rate which includes 100% additional compensation as provided in Article 94 [b] of the Labor Code
e. overtime on a rest day which falls on a regular holiday - plus 30% of the basic hourly rate which includes 160% additional compensation

Question 38

No employee may be compelled to render overtime work against his will. T or F.

Answer 38

True. This will constitute involuntary servitude.

Question 39

Exceptions when overtime work may be compelled (Emergency Overtime Work)

Answer 39

1. When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive
2. When overtime work is necessary to prevent loss of life or property or in case of imminent danger to public safety due to actual or impending emergency in the locality caused by serious accident, fire, floods, typhoons, earthquake, epidemic or other disasters or calamities
3. When there is urgent work to be performed on machines, installations or equipment, or in order to avoid serious loss or damage to the employer or some other causes of similar nature
4. When the work is necessary to prevent loss or damage to perishable goods
5. When the completion or continuation of work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer
6. When overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon

Question 40

If an employee refuses to render emergency overtime work when the employer can compel him under the law to render overtime work, he may be dismissed on the ground of insubordination or willful disobedience of the lawful order of the employer. T or F.

Answer 40

True. In cases of emergency overtime work.

Question 41

The right to claim overtime pay is subject to a waiver. T or F.

Answer 41

False. Such right is governed by law and not merely by the agreement of the parties.

XPNS:
When the alleged waiver of overtime pay is in consideration of benefits and privileges which may be more than what will accrue to employee in overtime pay, the waiver may be permitted.

Question 42

Work week

Answer 42

A week consisting of 168 consecutive hours or 7 consecutive 24-hour work days, beginning at the same hour and on the same calendar day each calendar week

Question 43

The employer, in the lawful exercise of its prerogative, is not prohibited from reducing the 8-hour normal working time per day provided that no corresponding reduction is made on the employee’s wage or salary equivalent to an eight-hour work day. In instances where the number of hours required by the nature of work is less than 8 hours, such number of hours should be regarded as the employee’s full working day.

Answer 43

Ok

Question 44

Flexible work arrangement

Answer 44

a. reduction of workdays (should not last for more than 6 months)
b. rotation of workers - one where the employees are rotated or alternately provided work within the workweek
c. forced leave - one where the employees are required to go on leave for several days or weeks utilizing their leave credits, if there are any
d. broken-time schedule - one where the work schedule is not continuous but the work-hours within the day or week remain
e. flexi-holidays schedule - one where the employees agree to avail of the holidays at some other days provided there is no diminution existing benefits as a result of such arrangement

Question 45

Effects of work interruption due to brownouts

Policy Instruction No. 36 issued by DOLE

Answer 45

1. Brownouts of short duration but not exceeding 20 mins. shall be treated as worked or compensable hours whether used productively by the employees or not
2. Brownouts running for more than 20 mins. may not be treated as hours worked provided any of the ff conditions are present:
   a. the employees can leave their workplace or go elsewhere whether within or without the work premises
   b. the employees can use the time effectively for their own interest
3. In each case, the employer may extend the working hours of his employees outside the regular schedules to compensate for the loss of productive man-hours without being liable for overtime pay
4. Industrial enterprises with one or two workshifts may adopt any of the workshifts prescribed for enterprises with 3 workshifts to prevent serious loss or damage to materials, machineries or equipment that may result in case of power interruptions
5. The days when work was not required and no work could be done because of shutdown due to electrical power interruptions, lack of raw materials and repair of machineries, are not deemed hours worked.

Question 46

Meal period

Answer 46

Not less than 1 hour or 60mins time-off for regular meals.

If he is required to work while eating, he should be compensated therefor.

Question 47

In the ff cases, a meal period of not less than 20mins. may be given by the employer provided that such shorter meal period is credited as compensable hours worked of the employee

Answer 47

a. where the work is non-manual work in nature or does not involve strenuous physical exertion
b. where the establishment regularly operates for not less than 16 hours a day
c. in cases of actual or impending emergencies or when there is urgent work to be performed on machineries, equipment or installations to avoid serious losses which the employer would otherwise suffer
d. where the work is necessary to prevent serious loss of perishable goods

Question 48

The law does not allow that meal time be shortened to less than 20mins. If so reduced, the same shall no longer be considered as meal time but merely as rest period or coffee break and, therefore, becomes compensable working time. T or F.

Answer 48

True.

Question 49

Premium pay v. Overtime pay

Answer 49

Premium pay: additional compensation required by law for work performed within 8 hours on non-working days, such as rest days and regular and special holidays.

Overtime pay: Additional compensation for work performed beyond 8hrs a day.

Question 50

Every employee who is entitled to premium pay may likewise be entitled to the benefit of overtime pay if he/she has rendered overtime work on such premium days as rest days and regular and special holidays. T or F.

Answer 50

True.

Question 51

In computing overtime, the cost-of-living allowance (COLA) provided under the Wage Orders is to be included. T or F.

Answer 51

False. The basis should be the basic wage.

Question 52

Underset is not offset by overtime.

Answer 52

Okay. The ff rules shall apply:
a. undertime work on any particular day shall not be offset by overtime on any other day

b. permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required by law such as overtime pay or night shift differential pay

Question 53

Inter-Garments Co. manufactures garments for export and requires its employees to render overtime work ranging from two to three hours a day to meet its clients’ deadlines. Since 2009, it has been paying its employees on overtime an additional 35% of their hourly rate for work rendered in excess of their regular eight working hours.

Due to the slowdown of its export business in 2012, Inter-Garments had to reduce its overtime work; at the same time, it adjusted the overtime rates so that those who worked overtime were only paid an additional 25%instead of the previous 35%. To replace the workers’ overtime rate loss, the company granted a one-time 5% across-the-board wage increase.
Vigilant Union, the rank-and-file bargaining agent, charged the company with Unfair Labor Practice on the ground that (1) no consultations had been made on
who would render overtime work; and (2) the unilateral overtime pay rate reduction is a violation of Article 100 (entitled Prohibition Against Elimination or Diminution
of Benefits) of the Labor Code.

Is the union position meritorious?

Answer 53

The allegation of ULP by the Union is not meritorious. The selection as to who would render overtime work is a management prerogative.

However, the charge of the Union on the diminution of benefits appears to be meritorious. Since three (3) years have already lapsed, the overtime rate of 35% has ripened into practice and policy, and cannot anymore be
removed. This is deliberate, consistent and practiced over a long period of time.

Question 54

Pol requested Obet, a union officer and concurrently chairman of the company’s Labor-Management Council, to appeal to the company for a recomputation of Pol’s overtime pay. After 5 p.m., his usual knock-off time, Obet spent two hours at the Personnel Office, reconciling the differing computations of Pol’s overtime. Are those two hours compensable?

Answer 54

Yes, because the time he spent on grievance meetings is considered hours worked.

Question 55

Percival was a mechanic of Pacific Airlines. He enjoyed a meal break of one hour. However, during meal breaks, he was required to be on stand-by for
emergency work. During emergencies, he was made to forego his meals or to hurry up eating. He demanded payment of overtime for work done during his meal
periods. Is Percival correct? Explain your answer.

Answer 55

Percival is correct. Under Article 85 of the Labor Code and Book Ill, Rule I, Section 7 of the Rules, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals. But where during the meal break, the workers
are required to stand by “for emergency work”, such period is considered overtime.

Percival is correct. All the time during which an employee is required to be on duty or to be at the employer’s premises or to be at a prescribed work place, and all time during which an employee suffered or permitted to work is considered compensable hours. Given that Percival’s meal break was not one of complete rest, as he did not the freedom to devote such period for his personal needs, the same should be considered as compensable hours of work.

Question 56

The meal time (lunch break) for the dining crew in Glorious Restaurant is either from 10 a.m. to 11 a.m. or from 1:30 p.m. to 2:30 p.m., with pay. But the management wants to change the mealtime to 11: a.m. to 12 noon or 12:30 p.m. to 1:30 p.m., without pay. Will the change be legal?

Answer 56

Yes, absent an agreement to the contrary, the management determines work hours and, by law, meal break is without pay.

Question 57

Under what conditions may a “compressed work week” schedule be legally authorized as an exception to the “eight-hour a day” requirement under the Labor
Code? State your answers and your reasons therefor.

Answer 57

A “compressed work week” schedule may be authorized under the following conditions:

1. The employee voluntarily agrees to it
2. There is no diminution in their weekly or monthly take home pay or fringe benefits
3. The benefits are more than or at least commensurate or equal to what is due the employees without the compressed work week
4. Overtime pay will be due and demandable when they are required to work on those days which should have ceased to be working days because of the
   compressed work week schedule
5. No strenuous physical exertion or that they are given adequate rest periods
6. It must be for a temporary duration as determined by the Department of Labor

Question 58

A waiver of the right to claim overtime pay is contrary to law. T or F.

Answer 58

True. As a general rule, overtime compensation cannot be waived, whether expressly or impliedly; and stipulation to the contrary is against the law. An exception would be the adoption of a compressed
work week on voluntary basis, subject to the guidelines of Department Order No. 02, Series of 2004.

Question 59

In a scenario like typhoon Ondoy, who may be required by the employer to work overtime when necessary to prevent loss of life or property?

Answer 59

Any employee

Question 60

Socorro is a clerk-typist in the Hospicio de San Jose, a charitable institution dependent for its existence on contributions and donations from well-wishers. She
renders work eleven (11) hours a day but has not been given overtime pay since her place of work is a charitable institution. Is Socorro entitled to overtime pay? Explain briefly.

Answer 60

Yes. Socorro is entitled to overtime compensation. She does not fall under any of the exceptions to the coverage of Art. 82, under the provisions of Hours of Work. The Labor Code is equally applicable to non-profit institutions. A covered employee who works
beyond eight (8) hours is entitled to overtime compensation.

Question 61

Danilo Flores applied for the position of driver in the motorpool of Gold Company, a multinational corporation. Danilo was informed that he would
frequently be working overtime as he would have to drive for the company’s executives even beyond the ordinary eight-hour work day. He was provided with a
contract of employment wherein he would be paid a monthly rate equivalent to 35 times his daily wage, regular sick and vacation leaves. 5 day-leave with pay every month and time off with pay when the company’s executives using the cars do not need Danilo’s service for more than eight hours a day, in lieu of overtime.

Are the above provisions of the contract of employment in conformity with, or violative of, the law?

Answer 61

Except for the provision that Danilo shall have time off with pay when the company’s executives using the cars do not need Danilo’s service for more than eight hours a day, in lieu of overtime, the provisions of the contract of employment of Danilo are not violative of any labor law because they instead improve upon the present provisions of pertinent labor laws.

Thus, the monthly rate equivalent to 35 times the daily wage may be sufficient to include overtime pay.

There is no labor law requiring the payment of sick and vacation leaves except the provision for a five-day service incentive leave in the Labor Code.

The 5-day-leave with pay every month has no counterpart in Labor Law and is very generous.

As for the provision in Danilo’s contract of employment that he shall receive time off with pay in lieu of overtime, this violates the provision of the Labor Code which states that undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employer to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required by the Labor Code.

Question 62

Pedro Sisid is a seaman who was employed in 1990 by Kuhol Ocean Transport. In May 1993, he was discharged and correspondingly paid vacation pay, terminal pay and overtime pay for the number of hours he actually rendered service in excess of his eight (8) working hours a day. Pedro Sisid, however, is dissatisfied with his overtime pay contending that he is on board the vessel 24 hours a day or even beyond his eight (8) working hours which circumstance renders him on call whenever his service is needed. Therefore, he insists that he be paid 16 hours a day by way of overtime. Is the contention of seaman Pedro Sisid tenable? Why?

Answer 62

No. The contention of seaman Sisid is not tenable.
The fact that he is on board the vessel 24 hours a day does not mean that beyond his eight working hours, he could be also considered as working because he is on call, and thus, is entitled to overtime pay. Because he is a seaman, this circumstance means he is on board his vessel while at sea. But he is not thereby on call as to be entitled to overtime pay because when it is not his working time, he can, if he chooses to do so, use said nonworking time effectively and gainfully for his own purpose.

No, there being a record of actual overtime services rendered. An estimated period of overtime is valid as a basis for payment of overtime, only in a case where overtime services are actually being rendered regularly but no record of the hours were kept.

Question 63

A manufacturing company operates on a 6-day workweek. It employs 200 workers whose regular workday is 8 hours. On May 1. 1990, the company and Union “M”, the employees; bargaining agent, agreed that the workday be 7 hours from Monday to Wednesday and 9 hours from Thursday to Saturday. The agreement was ratified by all the employees. In 1991, Union “M” lost its majority status and Union “P” was certified as bargaining representative. Union “P” filed a claim against the Company for unpaid overtime
pay of the 200 employees from May 1. 1990 when they started working 9 hours per day, 3 days a week. Invoking the 1990 agreement, the Company moved to dismiss the claim of Union “P”.

Decide with reasons.

Answer 63

The claim of Union “P” is valid. The Labor Code is very clear: Undertime work on any particular day shall not be offset by overtime work on any other day. (Article 88, Labor Code)

The right arising from the above provision, meaning, entitlement to overtime pay for one hour for working 9 hours per day, 3 days a week. (Article 87, Labor Code) cannot be considered as waived by a CBA even if the CBA is ratified by the employees concerned. The waiver in this instance is against the law, morals, and public policy. The law must prevail over the CBA.

Question 64

Ping Gabo is the Chief Engineer of the National Publishing Corp. with a monthly salary of P3.000.00. He works over eight (8) hours daily from Monday to Saturday. In May, June and July 1991, he rendered, each month, ten (10) hours beyond his regular work schedule. Is he entitled to overtime pay and holiday pay? Why?

Answer 64

The entitlement of Gabo to overtime pay and holiday pay is dependent on whether he is a managerial employee or not. If he Is a managerial employee, he is not entitled to overtime pay and holiday pay. The Labor Code provides that the provisions that grant overtime pay and holiday pay shall not apply, among others, to managerial employees.

A managerial employee is defined by the Code as referring to those whose primarily duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial
staff.

Gabo, as Chief Engineer, appears to be a managerial employee. On the other hand, his monthly pay is rather low for a managerial employee. Despite his title, his duty may not consist of a management of department or of a subdivision thereof.

Question 65

After working from 10 a.m. to 5 p.m. on a Thursday as one of 5,000 employees in a beer factory, A hurried home to catch the early evening news and have dinner
with his family. At around 10 p.m. of the same day, the plant manager called and ordered A to fill in for C who missed the second shift.

a. May A validly refuse the plant manager’s directive? Explain.
b. Assuming that A was made to work from 11 p.m. on Thursday until 2 a.m. on Friday, may the company argue that, since he was two hours late in coming to work on Thursday morning, he should only be paid for work rendered from 1 a.m. to 2 a.m.? Explain.

Answer 65

a. YES. A may validly refuse to fill in for C. A may not be compelled to perform overtime
work considering that the plant manager’s directive is not for an emergency overtime
work, as contemplated under Article 89 of the Labor Code.

b. NO. Undertime is not off-set by overtime [Art. 88]

Question 66

The Overseas Construction Company, a domestic corporation with a recruitment license, hired two thousand Filipino workers and assigned them to its
construction project in Kuwait. They were given free housing, work clothing and food.

The master employment contract approved for them by the Philippine Overseas Employment Administration (POEA) stipulated that they were to work at the overseas jobsite for twelve (12) hours per day and that they were accordingly to be paid wages higher than the POEA-approved schedule of pay rates. The individual employment contracts also contained the same stipulations. And during the predeparture
briefings at the company’s Mandaluyong plant site, the workers were told about these stipulations. By actual computation, the wages paid at the overseas jobsite were at least twenty-five percent (25%) more than the POEA approved rates. Moreover, the record shows that the workers did not always render the full twelve (12) hours of work stipulated in the employment contract.
Back home after completing their one-year overseas assignment, the workers engaged your services as their lawyer to prosecute a complaint with the POEA for
recovery of unpaid overtime work. What would your advice be?

Answer 66

Before I give an advise, I will first find the answer to this basic question: Were the workers actually paid for their overtime work when they received wages that were at least 25% more than the POEA-approved rates? The answer is No if the 25% added to the POEA- approved rate (which we assume is a rate for a day of eight (8) hours work) is only 25% of such POEA-approved daily wage rate. This is because what should be paid to the workers for the four (4) hours that they
work overtime in their twelve (12) hour day (a 12-hour work day is 4 hours in excess ofan 8-hour work day) should be 50% more of such POEA- approved rate.

The four (4) hours of work is 50% of the normal weight (8) hours of work a day plus 25% of such additional 50% for purposes of paying the overtime rate.

There is also the night differential pay to take into account because a 12-hour shift will include working hours from 10:00 p.m. to 6:00 a.m. If the higher-than-the POEA approved rate is computed as indicated above, I will advise the workers not to sue for they have already been paid for their overtime work.

If the higher-than-the-POEA-approved rates is not, however, computed as indicated above, the fact that the POEA-approved the contracts and that the workers agreed to the rates they receive will not be a bar to a complaint for unpaid overtime pay, the right to
which cannot be waived.

The rate approved by the POEA has built-in overtime pay. Thus, there is no basis for the claim for overtime pay.

Question 67

Work may be performed beyond eight (8) hours a day provided that:

Answer 67

Employee is paid for overtime work an additional compensation equivalent to his regular wage plus at least 25% thereof. [Art. 87, Labor Code]

Question 68

The provisions of the Labor Code on the Working Conditions and Rest Periods of employees are inapplicable to the following employees, except
a. A supervisor in a fast food chain;
b. A family driver;
c. A laborer without any fixed salary, but receiving a compensation depending
upon the result of his work;
d. A contractual employee.

Answer 68

d. a contractual employee

Question 69

The following are instances where an employer can require an employee to work overtime, except:

Answer 69

a. In case of actual impending emergencies caused by serious accident, fire,. Flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent
loss of live property, or imminent danger to public safety;
b. When the country is at war or when other national or local emergency has been
declared by the national assembly or the chief executive;
c. When there is urgent work to be performed on machines, installations, or
equipment, in order to avoid serious loss or damage to employer or some other
cause of similar nature;
d. Where the completion or continuation of the work started before the eight hour
is necessary to prevent serious obstruction or prejudice to the business or
operation of the employer.

Question 70

May the employer and employee stipulate that the latter’s regular or basic salary
already includes the overtime pay, such that when the employee actually works
overtime he cannot claim overtime pay?

Answer 70

No, the employer and employee cannot stipulate that the latter’s regular or
basic salary includes the overtime pay

Yes, provided the mathematical results shows that the agreed legal wage rate
and the overtime pay, computed separately, are equal to or higher that the
separate amounts legally due.

Question 71

LKG Garments Inc. makes baby clothes for export. As part of its measures to
meet its orders, LKG requires its employees to work beyond eight (8) hours
everyday, from Monday to Saturday. It pays its employees an additional 35% of
their regular hourly wage for work rendered in excess of eight (8) hours per day.
Because of additional orders, LKG now requires two (2) shifts of workers with both
shifts working beyond eight (8) hours but only up to a maximum of four (4) hours.
Carding is an employee who used to render up to six (6) hours of overtime work
before the change in schedule. He complains that the change adversely affected
him because now he can only earn up to a maximum of four (4) hours worth of
overtime pay. Does Carding have a cause of action against the company?

Answer 71

NO. A change in work schedule is a management prerogative of LKG. Thus, Carding
has no cause of action against LKG if, as a result of its change to two (2) shifts, he now
can only expect a maximum of four (4) hours overtime work. Besides, Art. 97 of the Labor
Code does not guarantee Carding a certain number of hours of overtime work. In Manila
Jockey Employees’ Union v. Manila Jockey Club (517 SCRA 707), the Supreme Court
held that the basis of overtime claim is an employee’s having been “permitted to work”.
Otherwise, as in this case, such is not demandable.

Question 72

Department Advisory No. 2, Series of 2009

Answer 72

Flexible work arrangement

Question 73

In case the employment contract stipulates that the compensation includes built-in overtime pay and the same is duly approved by the Director of the Bureau of Employment Services (now Bureau of Local Employment), the non-payment by the employer of any overtime pay for overtime work is justified and valid.

Answer 73

Ok.

Question 74

Built-in overtime

Answer 74

Composite or “package pay” or “all-inclusive salary” is an arrangement where the employee’s salary includes the overtime pay. In other words, the overtime pay is “built-in”.

Two conditions for validity of such arrangement:

(1) There is a clear written agreement knowingly and freely entered by the employee; and
(2) The mathematical result shows that the agreed legal wage rate and the overtime pay, computed separately, are equal to or higher than the separate amounts legally due.

Question 75

Night shift differential

Answer 75

The additional compensation of 10% of an employee’s regular wage for each hour of work performed between 10pm and 6am.

This benefit applies to all employees except:

i. Government employees, whether employed by the National Government or any of its political subdivisions, including those employed in government-owned and/or controlled corporations with original charters or created under special laws;
ii. Those of retail and service establishments regularly employing not more than five (5) workers;
iii. Kasambahay and persons in the personal service of another;
iv. Managerial employees, as defined in Art. 82 of the Labor Code and Book Three, Rule I, Sec. 2(b) of the Omnibus Rules;
v. Officers or members of a managerial staff, as defined in Book Three, Rule I, Sec. 2(c) of the Omnibus Rules;
vi. Field personnel and those whose time and performance are unsupervised by the employer.

Question 76

Night shift employees are entitled to a weekly night-off (usually Saturday evening) or a weekly rest period of 24 hours beginning at the start of the night shift.

Answer 76

Ok.

Question 77

Night shift employees are also entitled to the premium pay on special days and holidays. These days are reckoned as calendar days which start at midnight and end at the following midnight. The premium pay for the night shift also starts or ends at midnight. However, the employment contract, company policy or CBA may provide that in the case of night shift workers, days—including special days and regular holidays—shall begin on the night before a calendar day.

Answer 77

Ok.

Question 78

Computation of night shift compensation

Answer 78

i. Within regular work hours: plus 10% of the basic hourly rate or a total of 110% of the basic hourly rate.

ii. Within overtime hours:
a. Where night shift work is overtime work: plus 10% of the overtime hourly rate on an ordinary day or a total of 110% of the overtime hourly rate on an ordinary day

b. For overtime work in the night shift: plus 10% of 125% of basic hourly rate or a total of 110% of 125% of basic hourly rate

iii. Within work rendered on a rest day, special day, or regular holiday:
a. Where night shift work is regular work: plus 10% of the regular hourly rate on a rest day, special day, or regular holiday or a total of 110% of the regular hourly rate

b. Where night shift work is overtime work: plus 10% of the overtime hourly rate on a rest day, special day, or regular holiday
c. For overtime work in the night shift: plus 10% of 130% of regular hourly rate on said days or a total of 110% of 130% of the applicable regular hourly rate

Question 79

Reason for additional compensation for night shift differential

Answer 79

The lack of sunlight tends to produce anemia and tuberculosis and a predisposition to other illness. Nightwork brings increased liability to eyestrain and accident.

Question 80

Additional compensation for nighttime work may be waived. T or F.

Answer 80

False. It is founded on public policy.

Question 81

As a tireman in a gasoline station, open twenty four (24) hours a day ‘with only five (5) employees, Goma worked from 10:00 P.M. until 7:00 A.M. of the following
day. He claims he is entitled to night shift differential. Is he correct? Explain briefly.

Answer 81

Yes. Under Art. 86 of the Labor Code, night shift differential shall be paid to every employee for work performed between 10:00 o’clock in the evening to six o’clock in the morning.

Therefore, Goma Is entitled to night shift differential for work performed from 10:00 pm until 6:00 am of the day following, but not from 6:00 am to 7:00 am of the same day.

The Omnibus Rules Implementing the Labor Code (In Book ill, Rule lI dealing with night shift differential) provides that its provisions on night shift differential shall NOT apply to employees of “retail and service establishments regularly employing not more than five
(5) workers”. Because of this provision, Goma is not entitled to night shift differential because the gasoline station where he works has only five employees.

Question 82

Night differential is differentiated from overtime pay in that

Answer 82

while overtime pay is given for overtime work done during day or night, night differential is given only for work done between 10:00 p.m. and 6:00 a.m.

Question 83

Idle time

Answer 83

The idle time that an employee may spend for resting and dining which he may leave the spot or place of work though not the premises of his employer, is not counted as working time only where the work is broken or is not continuous.

A laborer 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 “cease 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. If these requisites are complied with, the period of such rest shall not be counted.

If the employee was “waiting to be engaged” (i.e. on his own volition, during which his time is not controlled by the employer), such waiting time is not considered working time.

Question 84

Is Waiting Time considered as HOURS WORKED?

Should an employee always be engaged in physical activity in order that it be counted in his/her hours worked?

Can there be an instance when an employee is practically doing nothing and still get paid or compensated?

Answer 84

YES. One such instance is when he spends his/her time waiting.

But not all waiting time are compensable working hours.

The Controlling Factor is whether waiting time is spent in idleness IS SO SPENT PREDOMINANTLY FOR THE EMPLOYER’s BENEFIT OR FOR THE EMPLOYEE’S.

If it is for the employer’s primary benefit, then such time shall be included in the computation of hours worked.

Question 85

Waiting Time spent by the employee shall be considered as working time

Answer 85

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

From class:

1. Waiting is an integral part of this work;
   - company drivers
   - truck driver
   - waiter, waitresses
   - firemen and drivers**
   - pwede mga bakers
2. The employee is required or engaged by the employer to wait
   - yung inutusan pumila sa banko
3. When employee is required to remain on call in the employer’s premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose
   - not all on calls are compensable: ex: carwash boy

Question 86

3 types of travel

Answer 86

a. Travel from home to work
- An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home-to-work travel which is NOT considered hours worked, EXCEPT:
a. when called to travel during emergency
b. when travel is done through a conveyance furnished by the employer
c. travel is done under vexing and dangerous circumstances
d. travel is done under the supervision and control of the employer

b. Travel that is all in the day’s work
- If however, the travels are made as part of the principal activity or job of the employee, then it shall be considered as hours worked.

c. Travel away from home
- Generally , these are considered as hours worked and are compensable as it cuts across the employee’s workday. The time is hours worked not only on regular working days during normal working hours but also during the corresponding hours on non-working days.
- XPN: During meal period or when Ee is permitted to sleep in adequate facilities furnished by the Er.

Question 87

Night work

Answer 87

The employment of Night Workers is now governed by Republic Act No. 10151 also known as “An Act Allowing the Employment of Night Workers, thereby repealing Articles 130 and 131 of Presidential Decree Number 442 otherwise known as The Labor Code of the Philippines”

Question 88

Coverage of night work

Answer 88

The law on night workers applies to all persons, who shall be employed or permitted or suffered to work at night, except those employed in agriculture, stock raising, fishing, maritime transport and inland navigation,during a period of not less than seven (7) consecutive hours, including the interval from midnight to five o’clock in the morning, to be determined by the Secretary of Labor and Employment, after consulting the workers’ representatives/labor organizations and employers.

(Article 154, par. 1 of the Labor Code, as amended by
R.A. No. 10151)

Question 89

Night worker

Answer 89

any employed person whose work covers the period from 10 o’clock in the evening to 6 o’clock the following morning provided that the worker performs not less than seven (7) consecutive hours of work

Question 90

If workers request to undergo free health assessment, the request needs to be granted. The health assessment must be given before taking a job as a night worker and it should also be performed at regular intervals. They should also undergo health assessment if they are experiencing health problems during such an assignment, which is not due to the factors involved in night work. If the employee is deemed unfit for night work, the findings will not be transmitted without the worker’s consent. Furthermore, the findings will not be used to their detriment.

Answer 90

Ok.

Question 91

Employees Who Are Deemed Unfit For Night Work

Answer 91

• Night workers who are unfit for night work due to health reasons will be transferred to a similar job practicable, which they are considered suitable to work.
• When transfer to a similar job is not practicable, the employees will be granted the same benefits as other employees who are unable to work.
• If the night worker has been diagnosed to be temporarily unfit for night work, they will be given protection against termination or dismissal due to health reasons.

Women can be employed as night workers, but measures must be taken to ensure that there is an alternative to night work for women workers. Nursing mothers and pregnant women are also allowed to work if a competent physician has provided a certification that they are indeed fit to render night work. It should be certified by a physician other than the company physician.

Question 92

Part-time work

Answer 92

single, regular or voluntary form of employment with hours substantially shorter than those considered as normal in the establishment

Question 93

Under the Labor Code of the Philippines, the normal working hours equals to eight (8) hours a day. Like the regular employees, part-time workers are entitled to the provisions of the Labor Code of the Philippinessuch as Holiday pay, overtime, premium, 13thmonth pay, service incentive leave and benefits upon retirement.

Answer 93

Ok.

In the book of C. A. Azucena, Jr. (The Labor Code with Comments and Cases, Volume I, Ninth Edition, 2016) states that if the work is partial, the pay should also be partial. It is a fair principle that applies to the entitlement to Holiday pay of a part-time worker.

Thus, where said employee works part only of the normal eight-hour shift, he or she should not expect a full day’s pay on a holiday.

Question 94

Under theDOLEExplanatory Bulletin on Part-Time Employment (1996), the amount of holiday pay is to be determined on a case-to-case basis. The basis is any of the following, whichever yields the highest amount:

Answer 94

1. the regular wage per day
2. the basic wage on the working day preceding the regular holiday if the employee is present or on leave with pay on the last working day immediately prior to the regular holiday
3. the average of his basic wages for the last seven working days for employees who are paid by results; or the basic on a particular holiday, if worked.

The afore-mentioned basis for the holiday pay of the part-time employee is without prejudice to a more favorable provisions in the Collective Bargaining Agreement should there be one or in the Company Policy or practice.

Question 95

Part-time employees enjoy security of tenure. T or F.

Answer 95

True.

The principle of security of tenure enshrined in the 1987 Constitution applies to all employees – without exception. As a part-time employee is undoubtedly and without question an employee, then the principle of security of tenure likewise applies to such employee.

Question 96

As with full-time employees, part-time employees may only be terminated from employment after observance of due process. Due process termination requires the observance of substantive due process and procedural due process. Non-compliance with due process will result in illegal dismissal of a part-time employee. T or F.

Answer 96

True.

Question 97

A part-time employee may be considered as a regular employee. T or F.

Answer 97

True. Further, it should be borne in mind that a part-time employee may be a regular despite the shorter working schedule. To be clear, a regular employee may be a full-time regular or a part-time regular. The Supreme Court no less has recognized such a situation.

In Perpetual Help Cooperative, Inc. v. Faburada, it was held that a part-time employee may be a regular despite rendering less than the eight hours of work a day. “That [the employee] worked only on a part-time basis does not mean that he is a not a regular employee. Ones regularity of employment is not determined by the number of hours one works but by the nature and by the length of time one has been in that particular job.”

Question 98

Wage

Answer 98

paid to any employee shall mean the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and includes the fair and reasonable value, as determined by the Secretary of Labor and Employment, of board, lodging, or other facilities customarily furnished by the employer to the employee. “Fair and reasonable value” shall not include any profit to the employer, or to any person affiliated with the employer.

Question 99

Elements of wage

Answer 99

a. paid by employer to any employee
b. object of remuneration or earnings, however designated
c. payable in money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same
d. Under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered
e. Includes the fair and reasonable value, as determined by the Secretary of Labor and Employment, of board, lodging, or other facilities customarily furnished by the employer to the employee. “Fair and reasonable value” shall not include any profit to the employer, or to any person affiliated with the employer.

Question 100

Attendance at lectures, meetings, trainings programs and similar activities need not be counted as working time if the following criteria are met:

Answer 100

1. Attendance is outside of the employee’s regular working hours
2. Attendance is in fact voluntary
3. The employee does not perform any productive work during such attendance (Sec. 6, Rule I, Book III, Rules Implementing the Labor Code).

Question 101

Assembly time is not compensable working time. T or F.

Answer 101

True.

The employees are not subject to the absolute control of the company during this period, otherwise, their failure to report in the assembly time would justify the company to impose disciplinary measures. The 30-minute assembly time was ultimately for the employees to indicate their availability or non-availability for work during every working day and not intended for the interests of the employer.

Question 102

Missed days due to brown outs should be deducted from the computation of back wages. T or F.

Answer 102

True.

Policy Instruction No. 36 states that where brown-outs running for more than twenty (20) minutes may not be treated as hours worked provided that any of the conditions provided for were met.
In the case at bar, the brownouts lasted for one whole day for every week in the contended period by the respondent employee. Thus, where the failure of workers to work was not due to the employer’s fault, the burden of economic loss suffered by the employees should not be shifted to the employer. Each party must bear his own loss.
The days when work was not required and no work could be done because of shutdown due to electrical power interruptions, lack of raw materials, and repair of machines, are NOT deemed hours worked.

Question 103

Are meal breaks compensable hours?

Answer 103

As a general rule, no. [Art. 85]

Should the employee be required to work while eating, he should be compensated therefore.

Question 104

When are meal breaks compensable?

Answer 104

A meal period of not less than twenty (20) minutes which may be given under any of the following cases:

a. where the work is non-manual work in nature or does not involve strenuous physical exertion
b. where the establishment regularly operates for not less than sixteen (16) hours per day
c. In cases of actual or impending emergencies or when there is urgent work to be performed on machineries, equipment or installations to avoid serious losses which the employer would otherwise suffer
d. where the work is necessary to prevent serious loss of perishable goods.

Exception:
It becomes compensable:
1. Where the lunch period or meal time is predominantly spent for the employer’s benefit.
2. Meal periods of 1 hour are deemed compensable when the employee is on continuous shift. [National Development Co. v. CIR, G.R. No. L-15422, (1962)]
3. Shortened meal period of less than 1 hour (say, 30 minutes) must be compensable.

Question 105

The employee is obliged to stay in the company premises for a full 8 hours, including meal times. T or F.

Answer 105

False.

Question 106

Waiting to be engaged v. Engaged to wait

Answer 106

Idle Time
- if the employee was “waiting to be engaged” (i.e. on his own volition, during which his time is not controlled by the employer), such waiting time is not considered working time

Waiting Time
- if the employee was “engaged to wait” (i.e. if waiting is considered an integral part of his work or if employee is required to wait by the employer), such waiting time is working time

Question 107

Payment of overtime benefits to an employee occupying a managerial position automatically and necessarily denotes that he is entitled to such benefits. T or F.

Answer 107

False.

Under the law, such employee is clearly exempted.

Question 108

Hours worked

Answer 108

Hours worked shall include:

1. all time during which an employee is required to be on duty or to be at a prescribed workplace; AND
2. all time during which an employee is suffered or permitted to work

Question 109

General principles in determining if time is considered as hours worked

Answer 109

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 work place in order that his rest period shall not be counted, it being enough that he stops working, may rest completely and may leave his work place to go elsewhere, whether within or outside the premises of his work place.
3. If the work performed was necessary, or it benefited 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 working time either:
   a. If the imminence of the resumption of work requires the employee’s presence at the place of work, or
   b. If the interval is too brief to be utilized effectively and gainfully in the employee’s own interest.

Question 110

Rest periods of short duration during working hours shall be counted as hours worked. T or F.

Answer 110

True.

Rest periods or coffee breaks running from 5 to 20 minutes shall be considered as compensable working time.

Question 111

Being on call is compensable work time if employee is

Answer 111

1. Required to remain on call in the employer’s premises or so close thereto
2. That he cannot use the time effectively and gainfully for his own purpose shall be considered as working while on call

Question 112

An employee who is not required to leave word at his home or with company officials where he may be reached is working while on call. T or F.

Answer 112

False.

Question 113

The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either:

Answer 113

1. If the imminence of the resumption of work requires the employee’s presence at the place of work OR
2. If the interval is too brief to be utilized effectively and gainfully in the employee’s own interest

Question 114

Necessary work after normal hours shall be compensated all the time. T or F.

Answer 114

False.

If the work performed was necessary, or it benefited the employer, or the employee could not abandon his work at the end of his normal working hours because he had no replacement, all the time spent for such work shall be considered as hours worked if the work was with the knowledge of his employer or immediate supervisor.

Question 115

Compensable or not?

1. Attendance in lectures, meetings, and training required by employers
2. Attendance in CBA negotiations
3. Attendance in hearings in cases
4. Participation in strikes

Answer 115

1. Attendance in lectures, meetings, and training periods sanctioned or required by the employer are considered hours worked.
2. Attendance in CBA negotiations or grievance meeting is compensable hours worked.
3. Attendance in hearings in cases filed by the employee is NOT compensable hours worked.
4. Participation in strikes is NOT compensable working time.

Question 116

Time spent by an employee in travel from jobsite to jobsite during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, the travel from the designated place to the workplace is part of the day’s work. T or F.

Answer 116

True.

Question 117

Regular full-time teachers are entitled to salary during semestral breaks. T or F.

Answer 117

True.

These semestral breaks are in the nature of work interruptions beyond the employees’ control. As such, these breaks cannot be considered as absences within the meaning of the law for which deductions may be made from monthly allowances.

Question 118

When an employer alleges that his employee works less than the normal hours of employment, who bears the burden of proving that allegation?

Answer 118

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.

Question 119

Reduction of Workdays

The normal workdays per week are reduced but this arrangement should not last for more than ____.

Answer 119

6 months

Question 120

A shortened meal break upon the employees’ request is compensable. T or F.

Answer 120

False.

Question 121

Conditions for shortened meal breaks upon employee’s request

Answer 121

1. The employees voluntarily agree in writing to a shortened meal period of 30 minutes and are willing to waive the overtime pay for such shortened meal period
2. There will be no diminution whatsoever in the salary and other fringe benefits of the employees existing before the effectivity of the shortened meal period
3. The work of the employees does not involve strenuous physical exertion and they are provided with adequate “coffee breaks” in the morning and afternoon
4. The value of the benefits derived by the employees from the proposed work arrangement is equal to or commensurate with the compensation due them for the shortened meal period as well as the overtime pay for 30 minutes as determined by the employees concerned
5. The overtime pay of the employees will become due and demandable if ever they are permitted or made beyond 4:30pm
6. The effectivity of the proposed working time arrangement shall be of temporary duration as determined by the Secretary of Labor.

Question 122

Lito Kuiangkuiang and Bong Urongsulong are employed as truck drivers of Line Movers. Inc. Usually. Lito is required by the personnel manager to just stay at the head office after office hours because he could be called to drive the trucks. While at the head office, Lito merely waits in the manager’s reception room. On the other hand, Bong is allowed to go home after office hours but is required to keep his cellular phone on so that he could be contacted whenever his services as driver becomes necessary. Would the hours that Lito and Bong are on call be considered compensable working hours?

Answer 122

The hours of Lito and Bong while on call can be considered compensable hours. The applicable rule is: “An employee who is required to remain on call in the employer’s premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose shall be considered as working while on call.

An employee who is not required to leave word at his home or with company officials where be may be reached is not working while on call.” Here, Bong is required to stay at the office after office hours so he could be called to drive the trucks of the Company. As for Bong, he is required to keep his cellular phone so that he could be contacted whenever his services as driver as needed. Thus, the waiting time of Lito and Bong should be considered are compensable
hours.

Note: It could be argued that in the case of Bong who is not required to stay in the office but is allowed to go home, if he is not actually asked by cellular phone to report to the office to drive a car, he can use his time effectively and gainfully to his own purpose, thus, the time that he is at home may mean that there are not compensable hours.

Question 123

The following are excluded from the coverage of Title I, Book II of Labor Code of the Philippines (Conditions of Employment) except:

a) Field personnel
b) Supervisors
c) Managers
d) Employees of government-owned and controlled corporations

Answer 123

B

Question 124

Which of the following is not compensable as hours worked?

a. Travel away from home
b. Travel from home to work
c. Working while on call
d. Travel that is all in a day’s work

Answer 124

A & B

Question 125

Principles In Determining Hours Worked

Answer 125

1. All hours which the Ee is required to give to his Er regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion.
2. Rest period is excluded from hours worked, even if Ee does not leave his workplace, it being enough that:
   a. He stops working
   b. May rest completely
   c. May leave his workplace, to go elsewhere, whether within or outside the premises of the workplace
3. All time spent for work is considered hours worked if:
   a. The work performed was necessary
   b. If it benefited the Er
   c. Or the Ee could not abandon his work at the end of his normal working hours because he had no replacement
   d. Provided, the work was with the knowledge of his Er or immediate supervisor
4. The time during which an Ee is inactive by reason of interruptions in his work beyond his control shall be considered working time:
   a. If the imminence of the resumption of the work requires the Ees presence at the place of work; or
   b. If the interval is too brief to be utilized effectively and gainfully in the Ees own interest (IRR, Book III, Rule I, Sec. 4).

Question 126

Sleeping Time

Answer 126

Compensable: if sleeping time is subject to serious interruption or takes place under conditions substantially less desirable than would be likely to exist at the employer’s home.

Not compensable: if there is an opportunity for comparatively uninterrupted sleep under fairly desirable conditions.

It is compensable working time if the nature of the employee’s work allows sleeping without interrupting or prejudicing the performance of his work.