LABOR STANDARDS AND WELFARE|TOPIC 10 Recording|Atty JMM
benefit can no longer be unilaterally
TOPIC 10 : OTHER SPECIAL
BENEFITS
13th MONTH PAY (PD 851)
 When we speak of 13th month pay, we have
to consider PD 851 as amended. This is the
law governing the payment of 13th month pay
 On the average, if we complete the monthly
salary for 12 months it is still inadequate to
meet the daily subsistence or needs of the
workers as well as his family. So the law came
up with PD 851 and this was intended to
protect the level of real wages from the
ravages of world wide inflation.
 Since the 13th month pay is considered an
extra salary and it is given not later Dec 24,
another purpose or objective of the law is to
enable workers to properly celebrate
Christmas and New Year.
 13th month pay covers Rank-and-File
employees and under this law, there are two
(2) classification of employees:
 Managerial Employees
 Ranked-and-File Employees
 The law considers RaF
employees as law paid
employees compared to
managerial employees. Hence,
the law is intend to cover only
RaF employees.
 Do not be confuse however that some
employers even at present, extend 13th
month pay even to their managerial
employees. If they do so, it is not because of
mandate of the law but rather the generosity
of the part of the employer.
 But legally speaking, when you speak of 13th
month pay law, it really is intended only for
RaF employees.
 If ER have been giving 13th month pay by way
of company policy, which forms part of the
workers employment contract, then that
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withdrawn, reduce, or diminished by the
employer because it now ripens in to an
Employment Benefit and doing such will
be a violation to the principle against
diminution of benefits.
 It is also true if it is by Company Practice.
Entitlement of RaF Employees
The RaF employee has been entitled regardless of
their monthly compensation? What about if the
RaF payed above the prescribed daily wage, will it
still be entitled to 13th month pay law?
Ans: Yes. Because the ceiling that was imposed
earlier has now been removed. There is no more
salary ceiling to entitle a RaF to his 13th month pay.
When does this right to 13th month pay accrue?
Ans: The RaF has work for at least for 1 month
in a calendar year, his entitlement to 13th month
pay already accrues. If the employee decides to
resign from his employment, then that employee is
entitled to 13th month pay in proportion to the
length of time he has worked from the date he
started working until he is separated from his
employment.
Are ALL RaF employees entitled to 13th month pay if
they have rendered atleast 1 month of service?
Ans: NO, not all RaF. Because the law
enumerates certain employees who are excluded
from entitlement. Employees not covered by PD
851 are:
1. Government Employees
2. Employees already payed the
equivalent of the 13th month pay at
the time of the issuance of the
guidelines. (i.e. establishment has
been given them midyear and
christmas bonus would be more or
less be better or higher than the
equivalent of 13th month pay under
the law)
3. Previously, house helpers are
excluded from 13 month pay, but
th
under the domestic helpers act
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LABOR STANDARDS AND WELFARE|TOPIC 10 Recording|Atty JMM
(present law), domestic workers are
NOW ENTITLED to 13th month pay.
4. Those who are payed PURELY
COMMISSION. The assumption if you are
payed purely on commission is that you
are payed better. Those workers who are
payed a fixed monthly salary +
commission are still entitled to 13th
month pay .
5. Those who are payed on a boundary or
task basis are also excluded to the 13th
month pay law. However, those who are
payed on a piece rate basis are entitled
to 13th month pay.
How much is the 13th month pay?
Ans: Under the law, it should not be less than
1/12 of the total basic salary earned by the employee
during the calendar year.
Basic Salary - shall include all remunerations or
earnings payed by the employer or services rendered
but DOES NOT INCLUDE allowances and monetary
benefits which are not considered or integrated to the
basic salary of the employee. Such as OT pay,
premium pay, Cash Equivalent of Vacation Leave, you
do not include that in the computation of Basic Salary.
Exception is when they are part of the basic salary
by way of a company policy or company practice or by
virtue of collective bargain agreement.
Basic Salary is usually found in the employment
contract where it is usually spelled out there.
Note: There may be months when the workers would
not be earning at all. (i.e. request to attend review
classes for the bar for 2 months where you won’t earn
at all).
Is the 13th month pay always equivalent to the 1
month basic salary?
Ans: No. The law uses total basic salary earned
during the calendar year, and there may be months
where the worker is not earning at all.
In computing the 13th month pay, should we include
the commissions earned by an employee?
kekw
Ans: In the case of Philippine Duplicators and
United Coconut Chemicals(?), where SC tried to
explain in what instance would the commission be
considered in computing the 13th month pay.
These cases involved medical representative who
were earning a fix monthly salary + commission
and another case involved a salesman who was
also payed fixed salary + commission. SC made a
differentiation in deciding whether the commission
is considered in computing the basic salary. READ
THE CASES.
PH Duplicators: “sales commissions which are
effectively an integral portion of the basic salary
structure of an employee, shall be included in
determining his 13th month pay.”
When is it due and payable?
Ans: payable not later than Dec 24. The
guidelines allow however the employer to pay in
installment. May give his employees 1/2 before
the opening of the regular schoolyeaar and the
other half will be on or before Dec 24.
If an employee has rendered at least 1month of
service during the calendar year is terminated by
just cause, would he still be entitled to 13th month
pay?
Ans: YES, there is no forfeiture to once
entitlement to 13th month pay.
Note: 13th month pay is an EXTRA MONTHLY
SALARY for the law paid employees referring to the
RaF employees.
PATERNITY LEAVE (RA 8187) July 05 1996
 This law was originally considered as the
counterpart of maternity leave because it
is only applicable for the first 4 deliveries
or miscarriages of the wife, which in
maternity leave also has 4 deliveries.
7-DAYS FULL PAY
 Refers to the leave benefits granted to a
married male employee allowing him not
to report for work for 7 days but continues
to earn the compensation, which consist
of his basic salary, on the condition that
his spouse has delivered a child or
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 Male employee - enjoys paternity leave
Female employee - enjoy maternity leave

LABOR STANDARDS AND WELFARE|TOPIC 10 Recording|Atty JMM

suffered a miscarriage. The intent being to  The law tries to treat these adoptive
support his wife during her period of parents similarly to biological parents who
recovery or nursing on the newly born are entitled to these special benefits.
child.
 Maternity and Paternity benefits and
 Entitled to full pay, consisting of basic salary, other benefits given to biological parents
for the 7 days of paternity leave, for up to upon birth of the child shall be enjoyed if
the first four (4) deliveries. the adoptee is below 7 yrs of age as of the
 There 4 conditions or requisites before a date the child is placed with the adoptive
married male worker to be entitled to parents through the three adoptive
Paternity Leave: placement authority issued by Dept of
Social and Welfare Development (DSWD).
 Must be an employee at the time of Because this is the age where

delivery of the child. RETIREMENT PAY (RA 302 LC) the child would be most need
the attendance of his or her

 Employee must be cohabiting with Retirement parents.

Spouse Is the result of bilateral act by the parties. A

 Must have applied with his voluntary agreement between the ER and EE
employer for the availment of the whereby the later, after reaching a certain age
Paternity Leave. Must be done in a agrees to severe his/her employment with the
reasonable period of time from the former. *sever

expected date of delivery by the What is the retirement age?

pregnant spouse or provided by
company rules. Ans: Established and found in an applicable
employment contract, collective bargain
 Legitimate spouse gave birth or had agreement, or retirement plan.
a miscarriage.
Employment consented
 Only available for married male (legitimate) Contract
employees. However, under expanded
maternity leave law, the woman employee CBA consented
For a retirement plan to be enforceable, there be a
may be married or not or even a mistress. Retirement Plan Employer comes up
 Not commutable of benefit. If it is not availed Unilaterally
consent of the employee.
of, then it cannot be converted into cash.  But in order that the retirement age may
Under the regulating rules, availment of this ONLY APPLI- be enforceable and applicable to all
paternity leave may also be given by the CABLE IN THE covered employees, the law requires the
employer before or during the delivery of the RETIREMENT
consent of the employee, whether express
PLAN
spouse, but subject to the discretion of the or implied. Consent is not required in the case of EC and
employer. The paternity leave can be given before or during the delivery
UNDER THE IRR
CBA because there is already a consent.

of the pregnant spouse. But subject to the discretion of the employer. BECAUSE: In the absence of a fixed retirement age
 GENERAL RULE is that you can avail of the on the contracts, then the retirement age
paternity leave AFTER the delivery of child. is as follows:
Exception if ER allows you to avail before or
during the time of delivery.  60 years old or more w/ atleast 5
years of service in the case of
ADOPTIVE WORKING PARENTS (RA 8552) Optional Retirement
 Parents who adopt a child, are entitled to  Compulsory will be at the age of
enjoy all the benefits to which biological 65.
parents are entitled. Retirement pay should not be lower than the minimum
required by law (Art 302). It could be more but never be less
kekw 3 than. In case less than, you have to pay the difference - what
the law provides, or under the employment contract or the
CBA.
 LABOR STANDARDS AND WELFARE|TOPIC 10 Recording|Atty JMM
 Exception is in the case of underground
mining employees where the optional
retirement is at the age of 50 years or
more, and compulsory is 60 years old.
 Art 302 was amended by RA 10757 (2016),
Before the the amendment now included Surface Mine
amendment speaks Workers. The optional age of retirement is
of underground
mine works. The fixed at 50 years of age or more and after
amendment speaks rendering 5 years of service, and compulsory
of Surface Mine
Workers is fixed at 60 years old.
 Under the RA 10757 amendment, when you
speak of Surface Mine Workers, they refer to
the meal plant workers, electrical,
mechanical. and daily funds personnel.
JMM: Wala na distinction pag dating sa mine workers whether you are underground or surface mine workers
 The retirement age is lowered since the
nature of work is hazardous and dangerous.
 Art 302 was further amended by RA 10789
(2016), with regard to Racehorse Jockey. The
age of retirement is fixed at 55 years old, the
law doesn’t make any distinction whether it
is optional or compulsory, but can be
considered as compulsory.
RACEHORSE JOCKEY - must be
How much is the retirement pay? license under the Philippine
Racing Commission.
Ans: The amount that is fixed under an applicable
employment contract or under and established
collective bargain agreement. Higher and equal is
okay, then if it is below the agreement then employer
pays the difference. In no case below than Art. 302 of the Labor Code
In the absence of an employment contract, CBA
or other applicable agreement, then the RETIREMENT
PAY must NOT BE LESS THAN 1/2 month salary for
every year of service.
1/2 month salary is equal to 22.5 days per year of
service. The components are as follows: 22. 5 days per year of
service
 (15 days) salary
 1/12 of 13th month pay (2.5 days)
 Cash equivalent of the Service Incentive
Leave (5 days)
 Retirement Pay is a piece of social legislation
because when an employee retires then he has
no more job and he can no longer work.
kekw
Retirement comes in as a measure of social
justice.
Are all employees entitled to retirement pay?
Ans: Under LC the retirement pay law does not
Exemption:
cover Employees in Retail service and Agricultural
establishments employing not more than 10
workers. masyadong maliit. The law does not
expect them to have money to pay retirement pay
No need to apply for exemption because they are
to these workers.
entitled by operation of law.
Government Employees are excluded from
the coverage of retirement pay. Because for
government employees, they have their own
retirement pay in GSIS act.
Domestic Workers are covered and entitled to
retirement pay.
GR: It applies to all employees regardless of status
whether managerial or RaF employees.
EX: Those who are employed in retail service and
agricultural establishments employing not more
than 10 workers, and Government Workers.
Where will the employer source its money to pay
Because before this law, there was no obligation on
retirement pay? the
part of the employer because there were already
existing laws for retirement pay which is the SSS Law.
Ans: From his OWN POCKET.
Note: Even if you have retired from compulsory
employment the employer has the management
prerogative to extend your service beyond your
when this law was amended, it now created an obligation
retirement age. on the part of the employees as soon as they opt to
retire or as soon as they have reached the age of
retirement.
 Since we have the Anti-Age Discrimination and
Employment Act, even if an employee has
already retired compulsorily from his
employment, he may still be offered
employment for another job, even if he has
reached the age of retirement. THUS, THERE IS
NO MAXIMUM AGE OF EMPLOYMENT.
TN: even if you have retired from
Who’s option is it to retire? compulsory employment , the ER has
the management prerogative to extend
Ans: It is the option of the EMPLOYEE. your service
beyond retirement age.
In the case of Padillo (2013), SC said that age
and tenure requirements are cumulative, they
must concur. Even though you have rendered 25
years of service, if you haven’t reached the age or
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LABOR STANDARDS AND WELFARE|TOPIC 10 Recording|Atty JMM
retirement, then you cannot avail of Retirement
Benefits.
Teachers who are teaching part time in a private
educational institutions entitled to retirement pay?
avail under Art. 302 of the Labor Code.
Ans: As what has been established, there are only
two situations that are excluded in the coverage of
retirementCase
pay. Teachers are not excluded
of De Lasalle Areneta University: Base on RA 7641 which amended Art. (1) A qualified solo parent
can avail. 302, its IRR, and applicable labor advisory - a part time employee of a
private university is entitled to retirement benefits.
The law is broad enough to encompass all private
sector employees and part time employees are not
among those specifically exempted from the law.
RA 8972 SOLO PARENT WELFARE ACT
Two (2) Major Employment Benefits:
 Parental Leave
 Flexible Work Schedule
You just need to look at the law and
implementing rules as to who may be considered
SOLO PARENTS. Can be a male or a female
Example:
1. Rape Victim
2. Widow/Widower
3. Convicted Spouse
4. Person suffering from Physical or
Mental Deficiency
5. Separated Spouse given custody
PARENTAL LEAVE
How long is Parental Leave?
Ans: Not more than 7 working days every year.
Provided that the solo parent has rendered at least 1
year of service. These parental leave shall be in
addition to leave privileges under existing laws.
What is Parental Leave?
Ans: Under the law, shall mean the leave benefits
granted to a solo parent to enable him/her to perform
parental duties and responsibilities where physical
presence is required. (i.e. child is ill, attend meeting or
graduation)
kekw
Is this leave benefit permanent?
Ans: No. Once you have ceased to be a solo
parent because you might have gotten married
again, then the benefit is gone.
What are the conditions or requirements to avail of
these parental leave?
Ans:
thus they
(2) Notified employer
(3) Presented a Solo Parent ID [DSWD]
FLEXIBLE WORK SCHEDULE
 Is a right granted to a qualified solo parent
to vary the time of his arrival and
departure at the workplace without
affecting the core hours of work.
 It’s the employer who will apply for
exemption with DOLE from the flexible
work schedule applied by the employee.
Exemption is valid if core hours or
company productivity may be adversely
affected.
 CHILD are those living and dependent
upon the solo parent for support who are
not married, unemployed and not more
than 18 years of age. Can be more than 18
if the person is not capable of supporting
himself because of mental deficiencies.
 It will be in additional to other leave
benefits under existing laws.
If there is an company policy/practice that is
intended for the same purpose of such leave, then
there is no obligation to provide parental leave
anymore.
ANTI-VIOLENCE AGAINST WOMEN AND
THEIR CHILDRENS ACT (RA 9262)
 A woman that is working and is a subject
of battery or violence from your partner.
 This woman may be able to avail of a 10
day payed leave under anti violence
against women and their children act.
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 LABOR STANDARDS AND WELFARE|TOPIC 10 Recording|Atty JMM

or in the Office of the This 10 day period may be requested by the  You can have as many surgeries within the
Public Prosecutor. You
can execute affidavit covered employee from her employer. Upon year. It shall in no case be more than 2
attesting that you have
suffered violence on proof that the purpose of the leave is to months since it is the maximum leave per
your person and you
have to file a leave for seek medical or legal attention or assistance, year. How much? Based on your gross monthly
purposes of seeking compensation.
medical or legal then the employer has the duty and When can you avail this special leave benefit?
assistance. THIS IS A
MATTER OF RIGHT! obligation to grant you a 10 day PAYED leave.
Ans: After undergoing surgery.
 Proof required: Filing a complaint with
Barangay/Office of the clerk of Court. What is the mode of payment?
Can the leave be extended? Ans: You can be paid after after surgery. But
employer may, in his discretion, pay you before or
Ans: YES. You just have to apply for extension and during surgery. This is non noncumulative or
if u can justify the necessity of extending the leave, nonconvertible to cash.
then you can avail of an extended PAYED leave.
This is in addition to other leave benefits.
How often can you avail of this leave benefit?
EXPANDED BREASTFEEDING PROMOTION
ACT (RA 10028)
Ans: As often as you get yourself be a victim of
violence on your person. There is no limitation under the law.  This law entitles the so called nursing
employees.
We also have to consider the Magna Carta of
Women under RA 9710. Under this act, there is  Nursing Employee:
also another leave benefit that is applicable for  A female worker, regardless of
female employees who had undergone surgery due to employment status who is lactating or
gynecological disorder. breastfeeding her infant and/or young
 It’s benefit is equivalent of full pay for 2 child. used by mothers physically
breastfeeding, or those that "express
months. Shall be in addition to leave  The employment benefit: their milk" comfortably and store this
privileges under existing laws. afterwards (sa mga nag-pump ni, I
 Lactation station think haha)
 The condition for entitlement is that the
 40-minute Break interval for every
female employee must have rendered
eight-hour working period (shall be in
continuous, aggregate employment services
addition with meal period)
of at least 6 months for the last 12 months. Part of the
 Infant (0 - 12 months)
 This benefit is different from the SSS sickness compensable
hours work. Part sa
benefit.  Young Child (12mo. + 1 day - 3yrs) 8 working hours.

 Similar or equal benefit granted under
company policy/practice or CBA shall be
considered as compliance unless provided
otherwise.
For how long will this special leave benefit be?
Ans: It shall be for a maximum of 2 months per
year.
Note: But for every surgery that the female employee
undergoes; As to how long will her leave benefit be,
will be dependent on the certification of a competent
physician, as to the required period of her
recuperation.
Period of recuperation will depend upon the competent physician's
certification as to how long it will be.
kekw
 Every employer is now required to establish a
lactation station that is accessible to the
breastfeeding women. (clean, well ventilated,
comfortable, and free from contaminants and
hazardous substances) Must be private and
not be in bathroom.
 40 minutes is the considered compensable
time which the nursing employee may use in
leaving the workstation and going to lactation
station.
 Frequency of lactating is agreed between ER
and EE.
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 LABOR STANDARDS AND WELFARE|TOPIC 10 Recording|Atty JMM
 However, not all establishments has adequate past events or facts."
spaces to establish a lactation station, DOLE came
Department Order No. 118-12 and
up of DO 143-15 providing the guidelines on
Memorandum Circular No. 2012-001 were issued
exemption of establishments from setting up
in the exercise of quasi-legislative powers of the
workplace lactation station. Provided that no
DOLE and the LTFRB, respectively. As such, notice
female clients visit or transact with the
and hearing are not required for their validity.
establishments. at the time of the application for exemption.
Exempted if: No nursing employees and no pregnant employees

Provided that no female clients visit or transact with the establishment.

In any case, it is undisputed that the DOLE
DRIVERS AND CONDUCTORS IN PUBLIC created a Technical Working Group that
UTILITY TRANSPORT SYSTEMrevoked by the DOLE if any of the conditions conducted several meetings and consultations
The exemption is not permanent! It can be

or exemptible (? spelling) establishment is not met by the establishment concerned.

 Employment benefit these workers enjoy are with interested sectors before promulgating
found in DO No. 118-12 Department Order No. 118-12. Among those
invited were bus drivers, conductors, and
 These drivers and conductors are suppose to operators with whom officials of the DOLE
be governed still by the normal hours of work conducted focused group discussions. The conduct
which shall not exceed 8 hours. It’s quite of these discussions more than complied with the
obvious however, a bus driver usually travel requirements of procedural due process.
for many hours, and is not unusual to spend
most of their time on the road.Thus there is a  These Department Regulation was
need to provide them for special provisions. assailed for being violative on
non-impairment clause. Does it?
 For these drivers and bus drivers they may
also be required to work Overtime but under Not all contracts, however, are protected
Department regulation, the maximum hours under the non-impairment clause. Contracts
of work shall not exceed 12 hours in any 24 whose subject matters are so related to the public
hour period, subject to safety and welfare are subject to the police power of the
operational conditions of the bus. State and, therefore, some of its terms may be
TN: Under the labor code there is no maximum overtime
changed or the whole contract even set aside
as long as the overtime work
is justified, you may be required
 May be required to render overtime without offending the Constitution; otherwise,
for 4 hours (12-8hrs)
to render 8 hours there is no maximum
overtime. This is not the same however, "important and valuable reforms may be precluded
 The reason is for the safety of by the simple device of entering into contracts for
with the case of Drivers and Utility
Transport Industry. There is a
maximum OT for them.
everyone. Passenger's safety and the purpose of doing that which otherwise may be
employees
prohibited."
TN: The Labor Code Under this DO bus drivers and conductors are
requires

There is no requirement for given a rest period of at least 1 hour

a meal period of at least 1 hour.
Similar to the right to due process, the right
rest period. However, in here
exclusive of their meal break within a 12
the law requires for a rest period
to non-impairment yields to the police power of
of at least 1 hour exclusive hour shift. Rest period of 5-20 minutes shall be considered compensable hours. the State.
of a meal break within a 12 hour shift. However, there is no obligation on the part of the employers to provide for a rest period.

These Department Regulations has been All told, there is no violation of the
If there shift is 12 hours, they are

entitled to a rest period of at

challenged by Provincial Bus Operators

least 1 hour which is on top of their meal break
equivalent to 1 hour non-compensable hours of work.
non-impairment clause.
Association as unconstitutional. They said  These Department Regulation was also
that it violates due process, because the DO
WHY NEEDED REST PERIOD?
Because it is the nature of their
again assailed for being violative on equal
was issued there was no notice or hearing.
work.

protection clause. Does it?

Does it violate due process?
In the present case, petitioners' sole claim on
However, notice and hearing are not their equal protection argument is that the initial
required when an administrative agency exercises implementation of Department Order No. 118-12
its quasi-legislative power. The reason is that in in Metro Manila "is not only discriminatory but is
the exercise of quasi-legislative power, the also prejudicial to petitioners." However,
administrative agency makes no "determination of petitioners did not even bother explaining how
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LABOR STANDARDS AND WELFARE|TOPIC 10 Recording|Atty JMM
exactly Department Order No. 118-12 infringed
on their right to equal protection.
At any rate, the initial implementation of
Department Order No. 118-12 is not violative of
the equal protection clause.
Petitioners' weak argument is now not only
moot. It also deserves no merit.
Does this Department Regulation Apply to Jeepneys,
Taxi operators, tourist buses?
Ans: Only bus drivers. According to Section 1 of
the said department order “This Rules shall apply to
all public utility bus owners and/or operators
employing drivers and conductors.”

kekw 8