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Labor-Azucena on Art 95 and 96

Labor-Azucena on Art 95 and 96

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Published by: Sui on Aug 10, 2008
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ART. 95
1.RIGHT TO SERVICE INCENTIVE LEAVE (SIL)
1.1.Meaning of One Year of Service
service within 12 months whether continuous orbroken, reckoned from the date the employee startedworking, including authorized absences and paidregular holiday
UNLESS the number of working days as a matter of practice/policy or provided in the employment contractis less than 12 months, then said period shall beconsidered one year for the purpose of determiningentitlement to the service incentive leave.
1.2.Part-time Workers
Advisory Opinion of the Bureau of WorkingConditions of DOLE: part-time workers are entitled tothe full benefit of the yearly 5 days incentive leave withpay.Art. 95 speaks of the number of months in a year forentitlement to said benefit (and not the number of hours worked in a day etc). Part-time are entitled to thefull five days and not on a pro-rata basis.
But DOLE’s Explanatory Bulletin on Part-timeEmployment allows proportionate availment andcommutation of the SIL. To quote:”xxx The availmentand commutation of the same can be proportionate tothe daily work rendered and the regular daily salary,respectively.”
1.3“On Contract” Workers
Teachers (Cebu Institute of Technology vs. Ople): Thephrase “those who are engaged on task or contractbasis should however be related with “field personnel”applying the rule on ejusdem generic that general andunlimited terms are restrained and limited by theparticular terms that they follow. The petitioner’steaching personnel cannot be deemed doing fieldduties away from the principal place of business orbranch office of the employer and whose actual hoursof work in the field cannot be determined withreasonable certainty.
1.4Piece-Rate Workers
Makati Haberdashery ruled that piece-rateemployees are not entitled to service incentive leavepay. But the SC appears to have changed its mind inthe later LABOR CONGRESS case. (Read comments inArt. 101 regarding workers paid by result).
1.5. Excluded Employer; Burden of Proof 
Establishments regularly employing less than 10employees.
When an employer claims that it falls within theexception, it is incumbent upon such employer to showthat he belongs to a class excepted by the law from thegeneral rule. Specifically, it is the employer’s duty, notthe employees, to prove that there are less than 10employees in the company.
2.
COMMUTATION OF SIL
The Code has no provision on the commutation orthe conversion to cash of unused service incentiveleave. But the IRR by DOLE requires it.
The law and the rules both state that the SIL neednot be given to employees already enjoying VLs withpay of at least 5 days.Questions:If a company grants 15 days VL, is the companyobliged to pay the cash equivalent of at least 5 days VLunused at the end of the year? If 5 of the 15 VL is SIL,does it follow that at least 5 of the 15 days VL must beconverted to cash if unused at year’s end? If theemployer does not do so, does the employer violatethe law on SIL?
2.1 Basis of Computation
Salary rate at the date of commutation. May be on apro-rata basis.Ex.Hired: January 1, 1989Separated: March 1, 1990SIL earned as of Dec. 31 1989 = 5 daysProportionate SIL for Jan and Feb 1990 =(2/12 x 5 days) = 0.833 day Total accrued SIL as of Separation date = 5.833 Thus if base pay is P10,000, what shall be the amountof the conversion?3.SICK LEAVE AND VACATION LEAVE AS VOLUNTARYBENEFITS
Five-day service incentive leave is mandatory
Vacation and Sick Leaves are voluntary.Discretionary policy of the employer or from CBA
SLs, VLs, Maternity leaves, etc are in intended to bereplacements for regular income which otherwisewould not be earned because an employee is notworking during the period of said leaves. They areintended to alleviate the economic conditions of theworkers.
VL’s purpose: Not merely to give employeeadditional salary or bounty but to afford the laborer achance to get a much needed rest to replenish his wornout energies and acquire new vitality to enable him toefficiently perform his duties. If an employee allows theyears to go by in silence and did not avail VLs, hewaives it. It is thus a mere concession or act of grave of the employer.
The employer may impose certain conditions forother voluntary benefits. Ex is the case of SMB where itmade a regulation stating that “if an employee doesnot choose to enjoy his yearly sick leave of thirty days,he may accumulate such leave up to a maximum of sixmonths and enjoy his six months sick leave at the endof the sixth year but may not commute it to cash.
 
3.1.Commutation of Sick Leave
If the company, for three years, has granted andpaid the cash equivalent of unenjoyed portion of theSL, it may be deemed to have ripened into companypractice or policy which cannot be peremptorilywithdrawn.
Bottomline: SL/VLs and their conversion to cash arevoluntary, not statutory in character. Entitlement tothem, especially by a corporate executive, must beproved. In cases of a corporation, Board resolutionmust approve such grant before it can be taken intoeffect.
3.2.Rationale for accumulation andconversion
In CBAs, the rationale for the accumulation of leavecredits and their conversion to cash is aimed primarilyat encouraging workers to work continuously and withdedication for the company. It is also to lure theemployees to stay with the company. The basis of theconversion must be the LAST PREVAILING SALARYreceived by the employee.4.PATERNITY AND MATERNITY LEAVE
RA 8187 grants paternity leave of 7 days (not 7working days) with full day to all MARRIED maleemployees in the private and public sectors.
Available only for the first four deliveries of theLEGITIMATE spouse with whom the husband isCOHABITING.
Delivery: childbirth, miscarriage and abortion
Purpose: To enable the husband to lend support tohis wife during the period of recovery and/or in thenursing of the newly born child.
IRR sets conditions to make one entitled to suchpaternity leave benefit (sec. 3 of the IRR of RA 8187).a.Employee at the time of deliveryb.Is cohabiting with spouse at the time odelivery (birth or miscarriage but abortion isnot mentioned)c.Applied for paternity leave in accordance withSec 4d.His wife has given birth or suffered amiscarriage
Not convertible to cash when unused
Maternity leave benefit is granted under the socialsecurity law in relation to Art. 133 of the LC.5.PARENTAL (SOLO PARENT) LEAVE
RA 8972 Solo Parents’ Welfare Act
not more than 7 working days every year and tosolo parent employee who has rendered at least 1 yearof service
not more than 7 means that one-day leave is legalcompliance
cumulative total each year cannot exceed sevendays
it is in addition to the legally mandated leaves = SIL,SSS Maternity Leave, Paternity Leave
Conditions are also set to make one entitled to suchbenefit.a.Rendered at least 1 year of service, continuousor broken at the time of the effectivity of thisactb.Notified employer of availment withinreasonable timec.Present a Solo Parent ID to employer
not convertible to cash unless otherwise stipulated.Non-compliance of employer=damages
Other than the paid leave, the law grants otherbenefits such as educational benefit, flexible workschedule, and housing benefits.
5.1.“Solo Parent” Defined
a.Woman who gives birth as a result of rape orcrimes against chastity even without finalconviction. But the mother should keep andraise the childb.Left solo or alone with the responsibility due todeath of spousec.While the spouse is detained or servingsentence for a criminal conviction for at least 1yeard.Physical and/or mental incapacity of spouse ascertified by public medical practitionere.Legal separation or de facto separation fromspouse for at least 1 year. But he/she must beentrusted with the custody of the childrenf.Declaration of nullity or annulment of marriageas decreed by a Court or by a church. Buthe/she must be entrusted with the custody of the children.g.Abandonment of spouse for at least 1 yearh.Unmarried mother/father who has preferred tokeep and rear his/her child/ren instead of givingthem up to welfare institutions or to othersi.Any other person who solely provides parentalcare and support to a child/ren provided he/sheis duly licensed as a foster parent by the DSWDor duly appointed legal guardian by the court j.Any family member who assumes theresponsibility of head of family as a result of death, abandonment, disappearance orprolonged absence of the parents or soloparent. But such circumstances should last forat least 1 year
Children- living with and dependent upon the solorparent for support who are unmarried, unemployed andbelow 18 years old, or even 18 years old and above butare incapable of self-support because of mental and/orphysical defect or disability.6.BATTERED WOMAN LEAVE
for female employees only. For discussion, see Art.133 discussion.
ART. 96
1.COVERAGE AND DISTRIBUTION
Apply only to establishments collecting servicecharges including those entities operating primarily asprivate subsidiaries of the government.
Rule applies to all employees of covered employers,regardless of their positions, designations oremployment status. 85% shall be distributed to thecovered employees except managerial employees

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