ARTICLE 82 to 90

of the Labor Code

Reporter: LICEL M. MONTILLA

 Title I
CONDITIONS OF EMPLOYMENT
WORKING CONDITIONS AND REST PERIODS
Chapter I : HOURS OF WORK

Overview/Key Questions:

Obviously, the law on conditions of employment cannot apply if employer-employee relationship

does not exist between the parties. In law, who is considered an "employee"? an "employer"?
What are the implications or consequences of the existence of employment relationship? Who are
the employees that are excluded from the coverage of the law on employment conditions?
What are the rights and responsibilities of the employer and the employee as regards determination
and observance of work hours?
In law what are considered hours worked? Which ones are "unworked," hence, not compensable?
Is lunch break compensable? What travel hours should be paid?
Is rendition of overtime work an obligation?
 ARTICLE 82. COVERAGE
The provisions of this Tide shall apply to employees in all establishments and undertakings whether
for profit or not but not to government employees, managerial employees, field personnel, members
of the family of the employer who are dependent on him for support, domestic helpers, persons in
the personal service of another, and workers who are paid by results as determined by the Secretary
of Labor in appropriate regulations.

As used herein, "managerial employees" refer to those whose primary duty consists of the
management of the establishment which they are employed or of a department or subdivision
thereof, and to other officers or members of the managerial staff.

"Field personnel" shall refer to nonagricultural employees who regularly perform their duties away
from the principal place of business or branch office of the employer and whose actual hours of work
in the field cannot be determined with reasonable certainty.
1.1 Question of Law, Question of Fact
The character of the relationship between the parties is not whatever they call it in their contract but what the law calls
it after examination of the facts. If the facts show an employer-employee relationship, this conclusion shall stand even
if the contract states otherwise. The existence of an employer-employee relationship is not a matter of stipulation; it is
a question of law .

Core or Non-core Jobs

The employer-employee relationship may cover core or non-core activities of the employer's business. It does not
follow that the worker is a job contractor, not an employee, just because the work he is doing is not directly related to
the employer's trade or business or because the work may be considered as merely "housekeeping." the worker is
not necessarily an employee just because the work he is doing is directly related to the trade or business of the
alleged employer. the kind of work is not the definitive test of whether the worker is an employee or not.

Example:
The presence of a physician who will give medical attention to employees as required by Article 157 is, of course,
necessary or desirable. But that fact does not decide whether the physician is an employee or not. S upreme Court
take it that any agreement may provide that one party shall render services for and in behalf of another, no matter
how necessary for the latter's business, even without being hired as an employee. The provision merely distinguishes
between two kinds of employees, regular and casual. Thus, 4 a company physician "on retained" basis, under Article
157, is not necessarily an employee.
1.2 Futile Circumlocutory Definition
The Labor Code, ironically, neither explains nor illustrates who is an employer or who is an
employee. But it offers "definitions" in Article 97, repeated in Article 212, which state:

"Employer" — any person, natural or juridical, domestic or foreign, who carries on in the
Philippines any trade, business, industry, undertaking or activity of any kind and uses the
services of another person who is under his order as regards the employment..."

"Employee" — any person who performs services for an employer in which either or both
mental and physical efforts are used and who receives compensation for such services,
where there is an employer-employee relationship.

It is not the Labor Code but court rulings that explain the elements or indicators of an
"employer-employee" relationship.
ELEMENTS OR "TESTS" OF EMPLOYMENT RELATIONSHIP
There has been no uniform test to determine the existence of an employer- employee relation. Generally,
courts have relied on the so-called right of control test, "where the person for whom the services are
performed reserves a right to control not only the end to be achieved but also the means to be used in
reaching such end."
In determining the existence of employer-employee relationship , the elements that are generally
considered comprises the so-called "four-fold test" namely: (a) the selection and engagement of the
employee; b.) payment of wages; (c) the power of dismissal; and (d) the employer's power to control the
employee with respect to the means and methods by which the work is to be accomplished.

It is the so-called "control test" that is the most important element.

Absent the power to control the employee with respect to the means and methods by which his work was
to be accomplished, there is no employer- employee relationship between the parties.

The fact that one had been designated "branch manager" does not make such person an employee.
Employment is determined by the right-of-control test and certain economic parameters. Titles are weak
indicators.
Where a person who works for another does so more or less at his own pleasure and is not subject to
definite hours or conditions of work, and in turn is compensated according to the result of his efforts and
not the amount thereof, we should not find that the relationship of employer and employee exists. There
is nothing in the records to show or would "indicate that complainant was under the control of the
petitioner" in respect of the means and methods in the performance of complainant's work.

TWO-TIERED APPROACH

The better approach would therefore be to adopt a two-tiered test involving: (1) the putative employer’s
power to control the employee with respect to the means and methods by which the work is to be
accomplished ; and (2) the underlying economic realities of the activity or relationship.

The proper standard of economic dependence is whether the worker is dependent on the alleged
employer for his continued employment in that line of business.
Sevilla vs. Court of Appeals points out that there has been no uniform test to determine the existence
of an employer-employee relationship. Four fold test may be regarded as traditional test of the
employment question. But it is not the sole test. It observes the need to consider the existing
conditions between the parties, in addition to the right-of-control element. In 2006 the Supreme Court
categorically applied the economic dependence test in the case of a worker who performed various
functions for a corporation for about six years. When the corporation stopped paying her salary, the
worker complained of constructive dismissal. The corporation countered that she was never an
employee because she was not "controlled" in the performance of her work. The Supreme Court ruled
that in certain cases the control test is not sufficient and that the better approach is to adopt a two-
tiered test.

But the "economic facts" test was rejected by the Supreme Court in Investment Planning vs. SSS,
November 18, 1967 and the rejection was strongly reaffirmed in SSS vs. CA, October 31, 1969. Now,
through Sevilla and Francisco, the economie relations test appears to have been revived.
Angelina Francisco vs. NLRC, Kasei Corp., etc., G.R. No. 170087, August 31, 2006 —
When formed in 1995, Kasei Corporation hired Francisco as Accountant, Corporate Secretary, and
Liason Officer. In 1996 she was replaced as Accountant and designated instead as Acting Manager. She
performed managerial administrative functions and represented the company in dealing with
government agencies such as the BIR, the SSS, and the Makati City government. Her monthly salary
was P27,500, with housing allowance and 10% profit share. But in January 2001 she was replaced as a
manager, was instead designated as Technical Consultant, and her pay was reduced by P2,500.00 a
month. Finally in October 2001 Kasei officials told her she was no longer connected with the company.

The Labor Arbiter declared that she was an employee and entitled to reinstatement. The NLRC affirmed
the LA's decision but did not order a reinstatement. The Court of Appeals took an opposite view as it
ruled that the complainant-petitioner was not an employee.

Ruling: There are instances when, aside from the-employer's power to control the employee with
respect to the means and methods by which the work is to be accomplished, economic realities of the
employment relations help provide a comprehensive analysis of the true classification of the individual,
whether as employee, independent contractor, corporate officer or some other capacity.
The better approach would be to adopt a two-tiered test involving: (1) the putative employer's power to control
the employee with respect to the means and methods by which the work is to be accomplished; and (2) the
underlying economic realities of the activity or relationship.

Two-tiered test would provide us with a framework of analysis surrounding the true nature of the relationship
between the parties. This is especially in this case where there is no written agreement or terms of reference to
base the relationship on; the complexity of the relationship based on the various positions and responsibilities
given to the worker over the period of the latter's employment . Thus, the determination of the relationship
between employer and employee depends upon the circumstances of the whole economic activity to which the
services performed are an integral part of the employer's business; such as (1)the extent to which the services
performed are an integral part of the employee’s business;(2)the extent of the worker’s investment in
equipment and facilities;(3)the nature and degree of control exercised by the employer;(4)the worker’s
opportunity for profit and loss; (5) the amount of initiative, skill, judgment required for the success of claimed
independent enterprise; (6) the permanency and duration of the relationship between the worker and the
employer; and (7)the degree of dependency of the worker upon the employer for his continued employment in
that line of business. The proper standard of economic dependence is whether the worker is dependent on the
alleged employer for his continued employment in that line of business.
Under the broader economic reality test, the petitioner can likewise be said to be an employee of respondent corporation
because she had served the company for six years before her dismissal, receiving check vouchers indicating her salaries
wages, benefits, 13th month pay bonuses and allowances , as well as deductions and Social Security contributions.When
petitioner was designated General Manager, respondent corporation made a report to the SSS. The inclusion of her name in
the on-line inquiry system of the SSS evince the existence of an employer and employee relationship between petitioner and
respondent corporation.
It is therefore apparent that petitioner is economically dependent on respondent corporation for her continued employment in
the latter's line of business. Based on the foregoing, there can be no other conclusion than that petitioner is an employee of
respondent Kasei Corporation. She was selected and engaged by the company for compensation, and is economically
dependent upon respondent for her continued employment in that line of business. Her main job function involved accounting
and tax services rendered to respondent corporation on a regular basis over an indefinite period of engagement. Respondent
corporation hired and engaged petitioner for compensation, with the power to dismiss her for cause. More importantly,
respondent corporation had the power to control petitioner with the means and methods by which the work is to be
accomplished. Since the position of petitioner as accountant is one of trust and confidence, petitioner is further entitled to
separation lieu of reinstatement.

Sunripe Coconut Products Co., Inc. vs. CIR, etc., G.R No. L-2009, April 30, 1949
When a worker possesses one attribute of an employee and others of an independent contractor, which make him fall within
an intermediate area, he may be classified under the category of an employee when the economic facts of the relation make it
more nearly one of employment than one of independent business enterprise with respect to the ends sought to be
accomplished."
Evidence of Employment: Identification Card, Vouchers, SSS Registration, Memorandum
Case 1:
Substantial evidence is sufficient as a basis for judgment on the existence of employer-employee relationship. No particular form
of evidence is required to prove the existence of such relationship.
In a business establishment, an identification card is usually provided not only as a security measure but mainly to identify the
holder thereof as a bona fide employee of the firm that issues it . Supreme Court agree with the labor arbiter that these matters
constitute substantial evidence adequate to support a conclusion that petitioner was indeed an employee of private respondent
employer .
That respondent had registered the petitioners with the Social Security System is proof that the latter were the former's
employees. The coverage of Social Security Law is predicated on the existence of an employer-employee relationship .

Case 2:
Employer-employee relationship between a commercial bank and its vice-president who was head of its legal department, the
Supreme Court, in support of its conclusion that the lawyer was an employee, observed:

In addition to his duties as Vice President of the bank, the complainant's duties and responsibilities were so defined as to prove
that he was a bank officer working under the supervision of the President and the Board of Directors of the respondent bank.

Appointment letters or employment contracts, payrolls, organization charts, personnel lists, as well as testimony of co employees,
may also serve as evidence of employee status.
Absence of Name in the Payroll

Opulencia Plant vs. NLRC, G.R No. 98368, December 15,-1993,

The employer argued that the absence of the complainant's name in the payroll disproved his being an employee.
The Court replied: We do not agree. For, if only documentary evidence would be required to show that
relationship, no scheming employer would ever be brought before the bar of justice. Thus, as in this case where
the employer-employee relationship between petitioners Esita was sufficiently proved by testimonial evidence, the
absence of time sheet, time record or payroll has become inconsequential .

Mode of Compensation, Not a Test of Employment Status

The presence or absence of employer-employee relationship is not determined by the basis of the employee's
compensation. The compensation, whether called wage, salary, commission or other name, may be computed on
the basis of time spent on the job or it may be based on the quality and/or quantity of the work done . It may
further be dependent on skills possessed, seniority earned, or performance and initiative shown by the employee.
Indeed, employment relationship is one thing, pay determination is another. The existence of employment
relationship depends on whether the "four-fold test',' (explained previously) is present or not. Piece-rate,
"boundary," and "pakyaw" are merely methods of pay computation and do not prove whether the payee is an
employee or not.
 Zamudio vs. National Labor Relations Commission, G.R. No. 76723, March 25, 1990
The nature of their employment, “pakiao” basis, does not make petitioners independent contractors. Pakiao workers
are considered employees as long as the employer exercises control over the means by which such workers are to
perform their work. The seasonal nature of petitioner’s work does not detract from the conclusion that employer-
employee relationship exists. Seasonal workers whose work is not merely for the duration of the season, but who are
rehired every working season are considered regular employees . The circumstance that petitioners do not appear in
respondent's payroll does not destroy the employer-employee relationship between them.

Existence of Employment Relationship Determined by Law, Not by Contract

Paguio vs. NLRC, et al., G.R. No. 147816, May 9, 2003

The company denied any employer-employee relationship, urging that the contract between them was one of lease of
service under the Civil Code. Even if the parties call their contract a "Contract of Lease of Services" under Articles
1642 and 1644 of the Civil Code, the factual existence of an employer- employee relationship will still prevail.
Ruling:
The law, in defining their contractual relationship, does so, not necessarily or exclusively upon the terms of their
written or oral contract, but also on the basis of the nature of the work petitioner has been called upon to perform.
WHEN EMPLOYMENT RELATIONSHIP PRESENT

Employment Relationship: Salaried Insurance Agent

Great Pacific Life Assurance Corporation vs.Judico, G.R. No. 73887, December 21, 1989
Facts: Honorato as a debit agent received a definite minimum amount per week as his wage known as "sales reserve." He
was assigned a definite place in the office to work on when he was not in the field. In addition to his canvassing work, he
performed collection job. In both cases he was required to make a regular report to the company regarding the performance
of his duties. An anemic performance would mean a dismissal; a faithful and productive service would earn him a promotion.
In September 1981, Honorato was promoted to Zone Supervisor, but was reverted to his former position in November.
Finally, on June 28, 1982 his agency contract was terminated. When he complained of illegal dismissal, the company
averred that he was not an employee at all. The Labor Arbiter dismissed the complaint on the ground that employer-
employee relationship did not exist. The NLRC reversed the decision, ruling that Honorato was a regular employee.
Ruling: The Supreme Court affirmed the decision of the NLRC. The element of control by the company on Honorato was
present. The agents who belong to the second category are not required to report for work at anytime. He was controlled by
the company not only as to the kind of work, the amount of results, the kind of performance, but also by the power of
dismissal.
Note: One salient point in the determination of employer-employee relationship which cannot be easily ignored is the fact
that the compensation that these agents on commission received is not paid by the insurance company but by the investor
(or the person insured). The test therefore is whether the 'employer' controls or has reserved the right to control the
'employee' not only as to the result of the work to be done but as to the means and methods by which the same is to be
accomplished.
Employment Relationship:

School Teachers Feati University vs. Hon. Jose S. Bautista, and Feati University Faculty Club-
PAFLU, G.R. No. L-21278, December 27, 1966
Professors and instructors are not independent contractors. The Court may take judicial notice
that a university controls the work of the members of its faculty; that it prescribes the courses or
subjects that they teach and the time and place for teaching; that the professor's work is
characterized by regularity and continuity for a fixed duration; that professors are compensated
for their services by wages and salaries, rather than by a share of the profits; that professors or
instructors cannot substitute others to do their work without the consent of the university; and that
they can be laid off if their work is unsatisfactory. All these indicate that the university has control
over their work and that they are, therefore, employees and not independent contractors.

The principal consideration in determining whether a workman is an employee or an independent

contractor is the right to control the manner of doing the work, and it is not the actual exercise of
the right by interfering with the work, but the right to control, which constitutes the test.
Employment Relationship:

Jeepney Driver, Taxi Driver, Barber

In a case of jeepney drivers, the Court said: "The fact that the drivers do not receive fixed wages but get only that
in excess of the so-called "boundary" they pay to the owner/operator is not sufficient to withdraw the relationship

Citizen's League of Free Workers, etal. vs. Abbas, G.R. No. L-21212, September 23,1966; National Labor Unions
vs. Dinglasan, 98 Phil. 649(1956)
Ruling: Employer-employee relationship exists between the owner of the jeepneys and the drivers even if the
latter work Wider the boundary system. In the case of jeepney owners/ operators and jeepney drivers, the former
exercise supervision and control over the latter. The management of the business is in the owner's hands. Not
having any interest in the business because they did not invest anything in the acquisition of the jeeps and did not
participate in the management thereof, their service as drivers of the jeeps being their only contribution to the
business, relationship of lessor and lessee cannot be sustained
Villamaria vs. CA and Bustamante, G.R. No. 165881, April 19, 2006 -Even the boundaryg contract between the
jeepney owner and the jeepney driver does not negate the employer-employee relationship between them. Under
the boundary-Hulog scheme, petitioner retained ownership of the jeepney although its material possession was
vested in respondent as its driver. The juridical relationship of employer-employee was not negated by the
Kasunduan, considering that petitioner retained control of respondent's conduct as driver of the vehicle. As
correctly ruled by the CA.
Employment Relationship: Piece-Rate Workers

Makati Haberdashery, Inc. vs. National Labor Relations Commission, G.R. Nos. 83380-81, November 15, 198
Facts: Individual complainants have been working for Makati Haberdashery, Inc. as tailors, seamsters, sewers,
basters and"plantsadoras.” piece-rate basis except two who were paid on a monthly basis. In addition to their piece-
rate, they were given a daily allowance of three (P3.00) pesos provided they report for work before 9:30 a.m.
everyday. They were required to work from or before 9:30 a.m. up to 6:00 or 7:00 p.m. from Monday to Saturday and
during peak periods even on Sundays and holidays.

Ruling: The facts at bar indubitably reveal that the most important requisite of control is present. When a customer
enters into a contract with the haberdashery or its proprietor, the latter directs an employee who may be a tailor,
pattern maker, sewer or "planlsadora"to or shirt as specified by the customer. Supervision is actively manifested in all
these acts — the manner and quality of cutting, sewing and ironing.

Note: Petitioner has reserved the right to control its employees not only as to the result but also the means and
methods by which the same are to be accomplished. The workers did not exercise independence in their own
methods, but on the contrary were subject to the control of petitioners from the beginning of their tasks to their
completion. Unlike independent contractors who generally rely on their own resources. The workers are totally
dependent on the employer in all these aspects.
Workers in Movie Projects

Maraguinot and P. Enero vs. NLRC, et al. and Viva Films, G.R. No. 120969, January 22, 1998
Facts: Petitioners Maraguinot and Enero were employed by Viva Films as part of the filming crew, Maraguinot
since July 1989 and Enero since June 1990. Their tasks consisted of loading, unloading and arranging movie
equipment in the shooting area, assisting in the "fixing" of the lighting system, and performing other tasks that
the cameraman and/or director may assign. Sometime in May 1992, they asked that their salary be adjusted to
the minimum wage rate. Instead of getting a pay increase they were asked to sign a blank employment contract,
and when they refused, their services were terminated on 20 July 1992. They sued for illegal dismissal.

It explained that it was primarily engaged in the distribution and exhibition, but not the making of movies. It also
asserted that it contracted with persons called "producers" (also referred to as "associate producers") to
"produce" or make movies. Hence, the petitioners were project employees of the associate producers who act
as independent contractors.
Ruling: Assuming that the associate producers are job contractors; they must then be engaged in the business
of making motion pictures. As such, the employment relationship between petitioners and producers is actually
one between petitioners and VTVA, with the latter being the direct employer. The Supervising PRODUCER acts
as the eyes and ears of the company and of the Executive Producer to monitor the progress of the
PRODUCER'S work accomplishment.
LABOR UNION AND UNREGISTERED ASSOCIATION AS EMPLOYER

The mere fact that an entity is a labor union does not mean that it cannot be considered an
employer of the persons who work for it. Even an unregistered association may be deemed an
employer.

Orlando Farm Growers vs. NLRC, G.R. No. 129076, November 25, 1998

It claimed that the workers were hired by the individual landowner members and therefore they
were employees of the landowners who were, in fact paying their S S S contributions.

Ruling: The Labor Code defines an employer as any person who acts in the interest of an
employer directly or indirectly. The law does not require an employer to be registered in order to
be considered as an employer. Thus, it is the Association that is deemed the employer of the
workers, not the individual landowner members.
WHEN EMPLOYMENT RELATIONSHIP ABSENT;

JOB CONTRACTING OR INDEPENDENT CONTRACTORSHIP

Employment relationship and job contracting are inseparable issues . A contractor is self-employed or an
employer to others. And if a contractor (an individual or a firm) hires other workers, the latter are his
employees and not those of the contractee.

The crucial question then is: Who is a bona fide job contractor? what is valid j o b contracting?

Take the familiar business of a security agency. It enters into contracts to render a job or service and,
therefore, is also known as a job contractor. The guards that the security agency supplies or assigns to
an enterprise do not thereby become employees of the client company. They are employees of the
security agency because, ordinarily, a security agency is an independent contractor, hence, an employer.
While employer-employee relationship exists between a job contractor and the workers that he hires, no
such relationship exists between those workers and the job contractee, the contractor's client.
Labor-only Contracting, Prohibited
His contract is not to accomplish a job or service but merely to supply the people to do the job. In effect,
he does not really hire people but merely recruits and supplies people. He is an agent of the true
employer. To sum up, employer-employee relationship exists between the job contractor and the people
he hires; on the other hand, in labor-only contracting the employer-employee relationship is between
the workers and the enterprise to which they are supplied.
GENERAL RIGHT OF EMPLOYER OVER CONDITIONS OF EMPLOYMENT
The conditions of employment are laid down by law. Broadly, therefore, the two kinds of employment
conditions or benefits are statutory (provided for by law) and voluntary (initiated by the employer
unilaterally or by contractual stipulation). For instance, an employer, to make its salary rates
competitive, may lawfully devise and implement a new salary scale applicable only to future employees.
(San Miguel Brewery Sales vs. Ople, ) aslong as a company's prerogatives are exercised in good faith
for the advancement of the employer's interest and not for the purpose of defeating.
Limitation to Stipulation
They should not be contrary to law, morals, good customs, public order or public policy.
EXCLUDED EMPLOYEES
Who are the employees that are or are not covered by the law on conditions of employment?
(1) Government employees
-government employees are governed by the Civil Service rules and regulations, not by the Labor
Code. But this exclusion does not refer to employees of government agencies and government
corporations that are incorporated under the Corporation Code. To them the Labor Code applies.
(2) Managerial employees, including other officers or members of the managerial staff
-"Managerial employee" in Article 82 includes supervisors, but "managerial employee" under
Article 212(m) does not. In effect, a supervisor is manager for purposes of Book III, but he is not
so for purposes of Book V .
(3) field personnel,
(4) the employer's family members who depend on him for support,
(5) domestic helpers,
(6) persons in the personal service of another,
(7) workers who are paid by results as determined under DOLE regulations.
2. Managerial employees, including other officers or members of the managerial staff Supervisory employees were under
the direct supervision of their respective department superintendents and that, generally, they assisted the latter in planning,
organizing, staffing, directing, controlling, communicating and in making decisions in attaining the company's set goals and
objectives. These supervisory employees were likewise responsible for the effective and efficient operation of their
respective departments.

Note: It contends that the distinction between managerial and supervisory employees under Article 212(m) should be made
to apply only to the provisions on Labor Relations, while the right of said employees to the questioned benefits should be
considered in the light of Article 82 of the Code and Section 2, Rule I, Book III of the implementing rules.

3.Field personnel
San Miguel Brewery, Inc. vs. Democratic Labor Organization, et al., G.R. No. Lrl8353,Juh/31, 1963
Morning roll call the outside or field sales personnel leave the plant of the company to go on their respective sales routes
and they do not have a daily time record but the sales routes are planned that they can be completed within 8 hours at
most, and they receive monthly salaries and sales commissions so that they are made to work beyond the required eight
hours similar to piece-work, pakiao, or commission basis regardless of the time employed, and the employees' participation
depends on their industry, it is held that the Eight- hour Labor Law has no application to said outside or field sales personnel
and that they are not entided to overtime compensation. In our opinion, the Eight-hour Labor Law only has application
where an employee or laborer is paid on a monthly or daily basis, or is paid a monthly or daily compensation, in which case,
if he is made to work beyond the requisite period of eight hours, he should be paid the additional compensation prescribed
by law.
This law has no application when the employee or laborer is paid on a piece-work, pakiao, or commission basis, regardless
of the time employed. The philosophy behind this exemption is that his earnings in the form of commission is based on the
gross receipts of the day. His participation depends upon his industry so that the more hours he employs in the work, the
greater are his gross returns and the higher his commission.
Note: As a general rule; "field personnel" are those whose performance of their job/service is not supervised by the
employer or his representative, the workplace being away from the principal office and whose hours and days of work
cannot be determined with reasonable certainty; hence, they are paid specific amount for rendering specific service or
performing specific work. If usage of work hours is supervised, the employee is not a "field personnel."

Auto Bus Transport System, Inc. vs. Bautista, G.R. No. 156367, May 16, 2005
The definition of a "field personnel" is not merely concerned with the location where the employee regularly performs his
duties but also with the fact that the employee's performance is unsupervised by the employer. As discussed above, field
personnel are those who regularly perform their duties away from the principal place of business of the employer and whose
actual hours of work in the field cannot be determined with reasonable certainty. Thus, in order to conclude whether an
employee is a field employee, it is also necessary to ascertain if actual hours of work in the field can be determined with
reasonable certainty by the employer . In so doing, an inquiry must be made as to whether or not the employee's time and
performance are constantly supervised by the employer. If usage of work hours is supervised, the employee is not a "field
personnel."
(4) Employer's family members who depend on him for support, Workers who are family
members of the employer, and dependent on him for their support, are outside the coverage of
this Tide on working conditions and rest periods.

(5) Domestic helpers, excluded also from the coverage of the law on working conditions are
domestic servants and persons in the personal service of another if they perform such services
in the employer's home which are usually necessary or desirable for the maintenance or the
enjoyment thereof, or minister to the personal comfort, convenience or safety of the employer,
as well as the members of the employer's household.

However, house personnel hired by a ranking company official, a foreigner, but paid for by the
company itself, to maintain a staff house provided for the official, are not the latter's domestic
helpers but regular employees of the company.
(6) Persons in the personal service of another

(7) Workers who are paid by results as determined under DOLE regulations.

(8) Workers Paid by Result

Workers paid by result are not covered by the law on working conditions. Examples
are workers paid per piece and those paid per task. Their common denominator is
that they are paid by results and not on the basis of the time spent in working, such as
those being paid straight wages by the hour, day, week or month.

-A taxi driver who is not observing any working hours is not covered by the Eight-hour
Labor Law
 ARTICLE 83. NORMAL HOURS OF WORK
The normal hours of work of any employee shall not exceed eight (8) hours a day.

Health personnel in cides and municipalities with a population of at least one million (1,000,000)
or in hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular
office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except
where the exigencies of the service require that such personnel work for six (6) days or forty-
eight (48) hours, in which case they shall be entitled to an additional compensation of at least
thirty percent (30%) of their regular wage for work on the sixth day. For purposes of this Article,
"health personnel" shall include: resident physicians, nurses, nutritionists, dieticians, pharmacists,
social workers, laboratory technicians, paramedical technicians, psychologists, midwives,
attendants and all other hospital or clinic personnel.
1. NORMAL HOURS OF WORK

1.1 Purpose of the 8-Hour Labor Law

The Eight-hour Labor Law was enacted not only to safeguard the health and welfare of the laborer or
employee, but in a way to minimize unemployment by forcing employers, in cases where more than 8-hour
operation is necessary, to utilize different shifts of laborers or employees working only for 8 hours each

1.2 Part-Time Work

What the law regulates is work hours exceeding eight hours. Article 83 does not say that the normal hours
of work is or should be eight hours but that it shall not exceed eight. Therefore, part-time work, or a day's
work of less than eight hours, is not prohibited.
Does a part- timer get the same five days service incentive leave, just like a full-timer?
"Explanatory Bulletin on Part-time Employment" dated 2 January 1996 issued by DOLE. In any case, the
fair and general rule is that the wage and the benefits of a part-timer are in proportion to the number of
hours worked.
Proportionate wage for part-time work is recognized in the eighth paragraph of Article 124, as amended by
R.A. No. 6727.
1.3 Work Hours of Health Personnel
Health personnel covered by the forty-hour workweek shall include, but not be limited to, resident
physicians, nurses, nutritionists, dieticians, pharmacists, social workers, laboratory technicians,
paramedical technicians, psychologists. However, the forty-hour workweek would not be applicable if there
is a training agreement between the resident physician and the hospital and the training program is duly
accredited or approved by the appropriate government agency. In such case, there is no employer-
employee relation on account of the approved training program .
What Article 83 merely provides are: (1) the regular office hour of eight hours a day, five days per week for
health personnel, and (2) where the exigencies of service require that health personnel work for six days or
forty-eight hours then such health personnel shall be entitled to an additional compensation of at least thirty
percent of their regular wage for work on the sixth day. There is nothing in the law that supports then
Secretary of Labor's assertion that "personnel in subject hospitals and clinics are entitled to a full weekly
wage for seven (7) days if they have completed the 40-hour/5-day workweek in any given workweek."

1.3b Republic Act No. 7305

Health personnel in government service are, as already stated, excluded from coverage of Articles 82 to
96. Their work hours, night shift differential pay, and other employment benefits are specified in R.A. No.
7305
2. TWELVE-HOUR WORKSHEET WITH OVERTIME

Through a contract freely entered into, the work shift may exceed eight hours, with
corresponding overtime pay.

Interphil Laboratories Employees Union-FFW, et. al vs. Interphil Laboratories, Inc., et al.,
G.R. No. 142824, December 19, 2001.)

The two-shift schedule effectively changed the working hours stipulated in the CBA. As the
employees assented by practice to this arrangement, [8 hours regular plus 4 hours overtime],
they cannot now be heard to claim that the overtime boycott is justified because they were
not obliged to work beyond eight hours . In other words, a 12-hour work shift is validated by
consent and its four-hour overtime work with overtime pay becomes a contractual
commitment. Boycott of the established four-hour overtime is declared by the Court as an
illegal strike.
 ARTICLE 84. HOURS WORKED
Hours worked shall include (a) all time during which an employee is
required to be on duty or to be at a prescribed workplace, and (b) all
time during which an employee is suffered or permitted to work.

Rest periods of short duration during working hours shall be counted

as hours worked.
 1. HOURS WORKED
THE IMPLEMENTING RULES, ELABORATING ON ARTICLE 84, STATES THE FOLLOWING
GUIDING PRINCIPLES:

Sec. 4. Principles in Determining Hours Worked. —The following general principles shall govern in determining
whether the time spent by an employee is considered hours worked for purposes of this Rule:
(a)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;
(b) 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, may rest completely and may leave his workplace, to go
elsewhere, whether within or outside the premises of his workplace;
(c) 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;
(d) The time during which an employee is inactive by reason of interruptions in his work beyond his control
shall be considered 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
interest.
 1.1 Preliminary Activities
Waiting Time: Engaged to Wait or Waiting to be Engaged?
The controlling factor is whether waiting time spent in idleness is so spent predominantly for the
employer's benefit or for the employee's.

Similarly, a truck driver who has to wait at or near the jobsite for goods to be loaded is working
during the loading period. If the driver reaches his destination and while awaiting the return trip is
required to take care of his employer's property, he is also working while waiting. In both cases,
the employee is engaged to wait. Waiting is an integral part of the job.
Note: Waiting time spent by an employee shall be considered as working time if waiting is
considered an integral part of his work or if the employee is required or engaged by an employer to
wait.

1.2 Working While Earing

The employee must be completely relieved from duty for the purpose of eating regular meals.
The meal time is not compensable if he is completely freed from duties during his meal period
even though he remains in the workplace.
1.3 Working While Sleeping
Whether sleeping time allowed an employee will be considered as part of his working time will depend
upon the express or implied agreement of the parties. In the absence of an agreement, it will depend
upon the nature of the service and its relation to the working time. The rule is that sleeping time may
be considered working time if it is subject to serious interruption or takes place under conditions
substantially less desirable than would be likely to exist at the employee's home . However, sleeping
time will not be regarded as working time within the meaning of the Act if there is an opportunity for
comparatively uninterrupted sleep under fairly desirable conditions.

1.4 "On Call”

When the work is not continuous, the time when the laborer can leave his work and rest completely
shall not be counted in the computation.
An employee who is required to remain on call on the employer's premises or so close thereto that he
cannot use the time effectively for his own purposes is working while "on call." An employee who is
not required to remain on the employer's premises but is merely required to leave word at his home or
with company officials where he may be reached is not working while on call.
1.5 Travel Time
Broadly, time spent walking, riding, or traveling to or from the place of work may or may not constitute
working time. In the Philippines, the Department of Labor Manual states that the principles which apply in
determining whether or not time spent in travel is working time depend upon the kind of travel involved. In
the Philippines, the Department of Labor Manual states that the principles which apply in determining
whether or not time spent in travel is working time depend upon the kind of travel involved.

(1) 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 a normal
incident of employment

(2) Travel that is all in the day's work. — Time spent by an employee in travel as part of his principal activity,
such as travel from jobsite to jobsite during the workday, must be counted as hours worked.

(3) Travel away from home.—Travel that keeps an employee away from home overnight is travel away from
home. Travel away from home is clearly worktime when it cuts across the employee's workday.
1.9 Semestral Break
Regular full-time monthly paid teachers in a private school are entitled to salary and emergency cost-of-living allowance
during semestral breaks.

University of Pangasinan Faculty Union vs. University of Pangasinan, No. L-63122, February 20, 1984

Facts: The petitioner's members are full-time professors, instructors, and teachers of respondent University. The teachers in
the college level teach for a normal duration often (10) months in a school year, excluding the two-month summer vacation.
These teachers are paid their salaries on a regular monthly basis. In November and December, 1981, the petitioner's
members were fully paid their regular monthly salaries. However, from November 7 to December 5, during the semestral
break, they were not paid their ECOLA or emergency cost-of-living allowance. The University claims that the teachers are not
entitled thereto because the semestral break is not an integral part of the school year and there being no actual services
rendered by the teachers during said period, t he principle of "No work, no pay" applies.

Ruling : However, they find themselves in a most peculiar situation whereby they are forced to go on leave during semestral
breaks. 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. "No work, no pay" principle does not apply in the instant case. Petitioners, in the case at bar certainly do not, ad
voluntatem, absent themselves during semestral breaks. Rather, they are constrained to take mandatory leave from work .
The time during which an employee is inactive by reason of interruptions in his work beyond his control.
2. WORK HOURS OF SEAMEN

A seaman or sailor, obviously, is not land-based. Does this mean he is "at work" all the time he
is on board the ship? The rule is that 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
"ceases 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.

A worker is entitled to overtime pay only for work in actual service beyond eight hours. Thus,
the mere fact that a crew member of a vessel was required to be on board his barge all day so
that he could immediately be called to duty when his services were needed did not imply that
he should be paid overtime for sixteen hours a day, but that he should receive overtime
compensation only for the actual service in excess of eight hours that he could prove.
 ARTICLE 85. MEAL PERIODS
Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of
every employer to give his employees not less than sixty (60) minutes time-off for their
regular meals.

1.1When Meal Time is Time Worked: Continuous Shifts

National Development Company vs. Court of Industrial Relations and National Textile
Workers Union, G.R. No. L-15422, November 30, 1962

Ruling: The idle time that an employee may spend for resting during 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 not continuous. The work being continuous,
the meal time breaks should be counted as working time for purposes of overtime
compensation.
1.2 Meal Time of Less Than 60 Minutes

Under Article 85 of the Code, the meal period should be not less than 60 minutes, in which case it is time-off or non
compensable time. The implementing rules' allow the meal time to be less than 60 minutes, under specified cases
and in no case shorter than 20 minutes. But such shortened meal time (say, 30 minutes) should be with full pay,
and, of course, the time when the employee cannot eat, because he is still working, should also be paid . Meal time
that " is less than 20 minutes becomes a rest period and, under the same Section 7, is considered working time.

The situations where the meal break may be shortened to less than 60 minutes, with full pay, are the following;
a) where the work is non-manual or does not involve serious physical exertion;
b) where the establishment regularly operates not less than sixteen (16) hours a day;
c) where there is actual or impending emergencies or there is urgent work to be performed on machineries,
equipment or installation to avoid serious loss which the employer would otherwise suffer; and
d) where the work is necessary to prevent serious loss of perishable goods.

The above situations of shortening the meal time are, logically, similar to the situations of emergency overtime work
under Article 89.
1.3 Shortened Meal Break upon Employees' Request
Employees themselves may request that their meal period be shortened so that they can leave work earlier than the
previously established schedule. In such a situation, the shortened meal period is not compensable. They may request, and
management may agree, to shorten the meal time to thirty minutes (12:00 to 12:30 p.m.). This 30-minute meal time is not
compensable.

The Department of Labor and Employment, in allowing such arrangement, imposes, however, certain conditions, namely:
(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 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 to work beyond
4:30 pm; and
(6.) The effectivity of the proposed working time arrangement shall be of temporary duration as determined by the Secretary
of Labor and Employment.
 ARTICLE 86. NIGHT SHIFT DIFFERENTIAL
Every employee shall be paid a night shift differential of not less than ten percent (10%) of his regular wage
for each hour of work performed between ten o'clock in the evening and six o'clock in the morning.

1. RATIONALE OF NIGHT SHIFT DIFFERENTIAL

"Night work cannot be regarded as desirable, either from the point of view of the employer or the wage earner.
It is uneconomical unless overhead costs are unusually heavy. Frequently the scale of wages is higher as an
inducement to employment on the night shift, and the rate of production is generally lower.

2. NIGHT SHIFT DIFFERENTIAL NOT WAIVABLE

Mercury Drug Co., Inc. vs. Nardo Dayao, et al., G.R. No. L-30452, September 30,1982
In fact, no additional evidence was necessary to prove that the private respondents were entiled to additional
compensation, for whether or not they were entitled to the same is a question of law which the respondent
court answered correctly. The "waiver rule" is not applicable in the case at bar. Additional compensation for
nighttime work is founded on public policy, hence the same cannot be waived (Article 6, Civil Code).
 ARTICLE 87. OVERTIME WORK
Work may be performed beyond eight (8) hours a day provided that the employee is paid for the
overtime work an additional compensation equivalent to his regular wage plus at least twenty-five
(25%) percent thereof. Work performed beyond eight hours on a holiday or rest day shall be paid
an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day
plus at least thirty (30%) percent thereof.

Night Differential and Overtime Pay

-When the tour of duty of a laborer falls at nighttime [between 10:00 PM and 6:00 AM], the receipt
of overtime pay will not preclude the right to night differential pay. The latter is payment for work
done during the night while the other is payment for the excess of the regular eight-hour work.
-The employees and employer, however, may stipulate in their collective agreement the payment of
overtime work at rates higher than those provided by law. In other words, unless there is an
agreement more favorable to the worker, the overtime rate is 30% of the rate for the first eight
hours on a holiday or rest day.
Overtime Work of Seamen
Seamen are required to stay on board their vessels by the very nature of their duties, and it is for this
reason that, in addition to their regular compensation, they are given free living quarters to be on board.
The correct criterion in determining whether or not sailors are entitled to overtime pay is not, therefore,
whether they were on board and cannot leave ship beyond the regular eight working hours a day, but
whether they actually rendered service in excess of said number of hours. Realistically speaking, a
seaman, by the very nature of his job, stays on board a ship or vessel beyond the regular eight-hour
work schedule.

Waiver or Quitclaim; No Waiver of Overtime Pay, Generally

The right to overtime pay cannot be waived. Any stipulation in the contract that the laborer shall work
beyond the regular eight hours without additional compensation for the extra hours is contrary to law
and null and void. Supreme Court held that said quitclaim deed cannot deprive the appellant of his right
to collect overtime and legal holiday wages under the Law. The right of the laborer to overtime
compensation cannot be waived expressly or impliedly.
When Valid; Waiver in Exchange for Certain Benefits
There seems to be an exception to the rule that overtime compensation cannot be waived. When
the alleged waiver of overtime pay is in consideration of benefits and privileges which may be more
than what will accrue to them in overtime pay, the waiver may be permitted. In a case, it appears
that some laborers of the petitioning union chose to work in the motor pool of the company and to
be paid under Plan-A wherein they were being paid a monthly rate equivalent to 30 times their daily
wage, in addition to regular sick leave, vacation leave, and other privileges of a regular employee.
The Supreme Court held that the petitioner cannot just assume that the waiver of overtime
compensation by the drivers who preferred to work in the motor pool is against the law, it
appearing that such waiver was to be in consideration for certain valuable privileges.
Another instance of waiver of overtime pay is the compressed work week arrangement. Under this
scheme the number of work days is reduced but the number of work hours in a day is increased to
more than eight, but no overtime pay may be claimed. The Court ruled: "Where it is shown that the
person making the waiver did so voluntarily, with full understanding of what he was doing, and the
consideration for the quit claim is credible and reasonable, the transaction must be recognized as a
valid and binding understanding.
ARTICLE 88. UNDERTIME NOT OFFSET BY OVERTIME
Undertime work on any particular day shall not be offset by overtime work on any other day. 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 in this Chapter.

1. UNDERTIME DOES NOT OFFSET OVERTIME

Where a worker incurs undertime hours during his regular daily work, said undertime hours should not
be offset against the overtime hours. The proper method should be to deduct the undertime hours from
the accrued leave but to pay the employee the overtime compensation to which he is entitled. It may
be said therefore that the offsetting of undertime work by overtime work, whether on the same or on
another day, is prohibited by jurisprudence and by statute.
 ARTICLE 89. EMERGENCY OVERTIME WORK
(a) 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;
(b) When it is necessary to prevent loss of life or property or in case of imminent danger to public
safety due to an actual or impending emergency in the locality caused by serious accidents, fire,
flood, typhoon, earthquake, epidemic, or other disaster or calamity;
(c) When there is urgent work to be performed on machines, installations, or equipment, in order to
avoid serious loss or damage to the employer or some other cause of similar nature;
(d) When the work is necessary to prevent loss or damage to perishable goods; and
(e) Where the completion or continuation of the work started before the eighth hour is necessary to
prevent serious obstruction or prejudice to the business or operations of the employer.
Any employee required to render overtime work under this Article shall be paid the additional
compensation required in this Chapter.

Article 89 of the Labor Code enunciates the situations where the employer can legally compel his
workers to render overtime work. The employer should pay his workers who render overtime
work the appropriate additional overtime compensation for such work. Aside from the instances
mentioned in Article 89, the Rules Implementing the Labor Code authorizes compulsory overtime
work when it is necessary.

In cases not falling within any of the enumerated cases or instances, no employee may be made
to work beyond eight (8) hours a day against his will.
 ARTICLE 90. COMPUTATION OF ADDITIONAL
COMPENSATION

For purposes of computing overtime and other additional remuneration as required by this
Chapter the "regular wage" of an employee shall include the cash wage only, without
deduction on account of faculties provided by the employer.

This provision should be clarified or modified. "Cash wage" necessarily excludes noncash
value of facilities; hence, saying "without deduction on account of facilities" is contradictory.
But if only the cash wage is the basis of overtime rate, this is unfair to the worker because as
defined in Article 97(f), "wage" includes the value of facilities, hence the value of facilities
should not be excluded when computing overtime pay. Therefore, overtime rate should be
based on the "regular wage" which is understood to include the value of facilities.
-END-