Professional Documents
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deliberately for a long period of time. That benefit becomes a vested right on the part
LABOR STANDARDS AND WELFARE|TOPIC 10 Recording|Atty JMM of the employees.It violates the principle of non-diminution of benefits if the employer
decides later on to unilaterally withdraw, reduce, or diminish it.
benefit can no longer be unilaterally
TOPIC 10 : OTHER SPECIAL withdrawn, reduce, or diminished by the
employer because it now ripens in to an
BENEFITS Employment Benefit and doing such will
13th MONTH PAY (PD 851) be a violation to the principle against
diminution of benefits.
When we speak of 13th month pay, we have
to consider PD 851 as amended. This is the It is also true if it is by Company Practice.
law governing the payment of 13th month pay Entitlement of RaF Employees
On the average, if we complete the monthly The RaF employee has been entitled regardless of
salary for 12 months it is still inadequate to their monthly compensation? What about if the
meet the daily subsistence or needs of the RaF payed above the prescribed daily wage, will it
workers as well as his family. So the law came still be entitled to 13th month pay law?
up with PD 851 and this was intended to
Ans: Yes. Because the ceiling that was imposed
protect the level of real wages from the
earlier has now been removed. There is no more
ravages of world wide inflation.
salary ceiling to entitle a RaF to his 13th month pay.
Since the 13th month pay is considered an
When does this right to 13th month pay accrue?
extra salary and it is given not later Dec 24,
another purpose or objective of the law is to Ans: The RaF has work for at least for 1 month
enable workers to properly celebrate in a calendar year, his entitlement to 13th month
Christmas and New Year. pay already accrues. If the employee decides to
resign from his employment, then that employee is
13th month pay covers Rank-and-File
entitled to 13th month pay in proportion to the
employees and under this law, there are two
length of time he has worked from the date he
(2) classification of employees:
started working until he is separated from his
Managerial Employees employment.
Ranked-and-File Employees Are ALL RaF employees entitled to 13th month pay if
The law considers RaF they have rendered atleast 1 month of service?
employees as law paid Ans: NO, not all RaF. Because the law
employees compared to enumerates certain employees who are excluded
managerial employees. Hence, from entitlement. Employees not covered by PD
the law is intend to cover only 851 are:
RaF employees.
1. Government Employees
Do not be confuse however that some
2. Employees already payed the
employers even at present, extend 13th
equivalent of the 13th month pay at
month pay even to their managerial
the time of the issuance of the
employees. If they do so, it is not because of
guidelines. (i.e. establishment has
mandate of the law but rather the generosity
been given them midyear and
of the part of the employer.
christmas bonus would be more or
But legally speaking, when you speak of 13th less be better or higher than the
month pay law, it really is intended only for equivalent of 13th month pay under
RaF employees. the law)
If ER have been giving 13th month pay by way 3. Previously, house helpers are
of company policy, which forms part of the excluded from 13 month pay, but
th
workers employment contract, then that under the domestic helpers act
kekw 1 Remember: at the TIME OF THE ISSUANCE of the
guidelines. You have to go back several years ago when
the 13th month law was promulgated.
Delete the listing of
household helpers from
the listing among those
who are not entitled to
LABOR STANDARDS AND WELFARE|TOPIC 10 Recording|Atty JMM
13th month pay. Under
the Domestic Worker's (present law), domestic workers are Ans: In the case of Philippine Duplicators and
Act, they are entitled to
13th month pay.
NOW ENTITLED to 13th month pay. United Coconut Chemicals(?), where SC tried to
4. Those who are payed PURELY explain in what instance would the commission be
COMMISSION. The assumption if you are considered in computing the 13th month pay.
You are considered to
payed purely on commission is that you These cases involved medical representative who
be paid on a piece
are payed better. Those workers who are were earning a fix monthly salary + commission
rate basis if a
standard amount is
payed a fixed monthly salary + and another case involved a salesman who was
fixed for every piece
or unit of work commission are still entitled to 13th also payed fixed salary + commission. SC made a
produced that is
month pay . differentiation in deciding whether the commission
more or less regularly
replicated. If you are
is considered in computing the basic salary. READ
a piece rate worker, 5. Those who are payed on a boundary or THE CASES.
you are considered task basis are also excluded to the 13th
an employee and is
month pay law. However, those who are PH Duplicators: “sales commissions which are
entitled to 13th
effectively an integral portion of the basic salary
month pay. payed on a piece rate basis are entitled structure of an employee, shall be included in
to 13th month pay. Not less than- means that it coulddetermining his 13th month pay.”
be more than 1/12 of the total
How much is the 13th month pay? basic salary earned by the When is it due and payable?
employee during the calendar year
Ans: Under the law, it should not be less than Ans: payable not later than Dec 24. The
1/12 of the total basic salary earned by the employee guidelines allow however the employer to pay in
Basic Salary- how much did he earn each
during the calendar year. month? And multiply it by not less than installment. May give his employees 1/2 before
1/12 = 13th month pay of the employee the opening of the regular schoolyeaar and the
Basic Salary - shall include all remunerations or
earnings payed by the employer or services rendered other half will be on or before Dec 24.
but DOES NOT INCLUDE allowances and monetary If an employee has rendered at least 1month of
benefits which are not considered or integrated to the service during the calendar year is terminated by
basic salary of the employee. Such as OT pay, just cause, would he still be entitled to 13th month
Even though the employee has stolen money from the employer, as
premium pay, Cash Equivalent of Vacation Leave, you pay? long as he has rendered 1 month of service, there is no forfeiture of
do not include that in the computation of Basic Salary. 13th month pay.
Ans: YES, there is no forfeiture to once
Exception is when they are part of the basic salary entitlement to 13th month pay.
by way of a company policy or company practice or by
virtue of collective bargain agreement.
Note: 13th month pay is an EXTRA MONTHLY
Basic Salary is usually found in the employment
SALARY for the law paid employees referring to the
contract where it is usually spelled out there.
RaF employees.
Note: There may be months when the workers would
not be earning at all. (i.e. request to attend review PATERNITY LEAVE (RA 8187) July 05 1996
classes for the bar for 2 months where you won’t earn This law was originally considered as the
at all). counterpart of maternity leave because it
Is the 13th month pay always equivalent to the 1 is only applicable for the first 4 deliveries
month basic salary? or miscarriages of the wife, which in
maternity leave also has 4 deliveries.
Ans: No. The law uses total basic salary earned 7-DAYS FULL PAY
during the calendar year, and there may be months Refers to the leave benefits granted to a
where the worker is not earning at all. married male employee allowing him not
to report for work for 7 days but continues
to earn the compensation, which consist
In computing the 13th month pay, should we include of his basic salary, on the condition that
the commissions earned by an employee? his spouse has delivered a child or
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Male employee - enjoys paternity leave
Female employee - enjoy maternity leave
delivery of the child. RETIREMENT PAY (RA 302 LC) the child would be most need
the attendance of his or her
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LABOR STANDARDS AND WELFARE|TOPIC 10 Recording|Atty JMM
This 10 day period may be requested by the You can have as many surgeries within the
or in the Office of the Public
Prosecutor. You can
execute affidavit attesting
covered employee from her employer. Upon year. It shall in no case be more than 2
that you have suffered
violence on your person
proof that the purpose of the leave is to months since it is the maximum leave per
How much? Based on your gross monthly
and you have to file a leave
for purposes of seeking seek medical or legal attention or assistance, year. compensation.
medical or legal assistance.
THIS IS A MATTER OF
RIGHT!
then the employer has the duty and When can you avail this special leave benefit?
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.
How often can you avail of this leave benefit?
This is in addition to other leave benefits.
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 their milk"
comfortably and store this afterwards (sa
months. Shall be in addition to leave The employment benefit: mga nag-pump ni, I think haha)
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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
Exempted if: No nursing employees and no pregnant employees and hearing are not required for their validity.
establishments. atProvided
the time of the application for exemption.
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
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
as long as the overtime work changed or the whole contract even set aside
is justified, you may be required
to render 8 hours there is no maximum May be required to render overtime without offending the Constitution; otherwise,
overtime. This is not the same however,
with the case of Drivers and Utility
Transport Industry. There is a for 4 hours (12-8hrs) "important and valuable reforms may be precluded
maximum OT for them.
The reason is for the safety of by the simple device of entering into contracts for
everyone. Passenger's
employees
safety and
the purpose of doing that which otherwise may be
prohibited."
TN: The Labor Code requires Under this DO bus drivers and conductors are
a meal period of at least 1 hour.
There is no requirement for
given a rest period of at least 1 hour
rest period. However, in here Similar to the right to due process, the right
the law requires for a rest period
of at least 1 hour exclusive
of a meal break within a 12 exclusive of their meal break within a 12 to non-impairment yields to the police power of
hour shift. If there shift is
hour shift.
12 hours, they are entitled to
a rest period of at least 1 hour
Rest period of 5-20 minutes shall be considered compensable hours.
However, there is no obligation on the part of the employers to the State.
which is on top of their meal break provide for a rest period.
equivalent to 1 hour non-compensable hours of work.
These Department Regulations has been All told, there is no violation of the
challenged by Provincial Bus Operators non-impairment clause.
WHY NEEDED REST PERIOD?
Association as unconstitutional. They said These Department Regulation was also
work. that it violates due process, because the DO
Because it is the nature of their
again assailed for being violative on equal
was issued there was no notice or hearing. 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.”
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