MODULE 7Atty. Harve B. Abella, Esq.

Art. 91 Right to a weekly rest day• Duration: NOT LESS than 24 hour consecutive hours after

every SIX consecutive normal work days.

• Who determines?• ER determines and schedules and weekly rest periods subject to

the following• 1. CBA• 2. Rules and regulations issued by the SOLE• 3. Ees preference based on religious grounds

• NOTE: when such preference will prejudice the business operations of the ER and no other remedial measures are available, the weekly rest period may be scheduled to meet the EE’s choice for at least 2 days a month

Art. 92 When ER may require work on a rest day• GEN. RULE: The EER may NOT REQUIRE Ees to work

on a rest day• EXCEPTIONS (UPANAC)

• Urgent work• To Prevent Loss or damage to perishable goods• In case of Actual or Impending emergencies caused by force

majeure• Nature of the work requires continuous operations and the

stoppage of work may result in irreparable injury or loss to the ER • Abnormal pressure of work due to special circumstances • Analogous circumstances

Art. 92 Compensation for Rest day, Sunday or Holiday Work• SPECIAL DAYS

• August 21 RA 9256 2/25/04• November 1 EO 203 6/30/87• December 31 EO 203 6/30/87

• Other special days enacted by Congress, and proclaimed by the president for certain areas in the country (ex. Charter Day)

• Work performed on a rest day :regular wage + 30% premium

• Work performed on a special day: regular wage + 30% premium

• Work performed during rest day falling on a special day: regular wage + 50% premium (Art. 93)

ART. 93• When entitled to premium pay.• IF WORKED = regular wage plus 30%• IF NOT WORKED = no compensation or no premoium

REGULAR HOLIDAY SPECIAL DAY

Compensable even if unworked subject to certain conditions

Not compensable if unworked

Limited to the 11 enumerated by the labor code

Not exclusive since a law or ordinance may provide for other special holidays

Rate is 200% of the regular rate if worked

Rate is 130% of the regular wage if worked

Rate of Additional Compensation for Work on a Rest Day, Sunday or HolidayDAY RATE OF ADDITIONAL

COMPENSATION

Work on a SCHEDULED REST DAY 30% of regular wage

No regular workdays and no specific rest days

30% of regular wage for work performed on Sundays and holidays

Work on Sunday when it is his established rest day

30% of regular wage

Work on special holiday 30% of regular wage

Work on special holiday falling on SCHEDULED REST DAY

50% of regular wage

Work on regular Holiday falling on SCHEDULED REST DAY

260% of regular wage

HOLIDAYS, SIL & SERVICE CHARGES• Art. 94. Right to Holiday Pay

• Holiday Pay• Termed also as legal holiday• A day’s pay given by law to an employee EVEN IF HE

DOES NOT WORK on a regular holiday. It is limited to the ELEVEN regular holidays listed by law. The EE should not have been absent without pay on the working day preceding the regular holiday.

List of Regular Holidays• NM-GALIN-CREB

1.New Year’s Day Jan 1

2.Maundy Thursday –movable

3.Good Friday –movable

4.Araw ng Kagitingan –April 9

5.Labor Day –May 1

6.Independence Day –June 12

7.National Heroes Day – last Sunday of August

8.Bonifacio Day –November 30

9.Christmas Day –December 25

10.Rizal Day December 30

11.Eid’l Fitr – movable (RA 9177, Nov. 13, 2003)

RULE ON COMPENSABILITY• COMPENSABLE whether worked or unworked subject to

certain conditions;• Legal holidays falling on Sunday does not create an

additional workday nor create a legal obligation for the ER to pay extra, aside from the usual holiday pay to its monthly paid employees.

DOUBLE HOLIDAY PAY• (Ex. Araw ng Kagitingan and Good Friday falling on the

same day)

1.200% of the basic wage1. Entitled even if said holiday is unworked

2. To give EE only 100% would reduce the number of holidays under DO No. 3

2.300% if he worked on 2 regular holidays falling on the same day

3.390% of the basic wage if he worked on 2 regular holidays falling on the same day and at the same time, falling on a scheduled rest day

SINGLE HOLIDAY RULE• PROVIDED THAT THE EMPLOYEE• Worked• Was on leave with pay; or• Was on authorized absence on the day prior to the regular

holiday

SUCCESSIVE REGULAR HOLIDAYS

• To be entitled to 2 successive holidays, the EE must:• Be present on the day immediately preceding the first

holiday; OR• Be on leave with pay.

• Otherwise, he must work on the first holiday to be entitled to holiday pay on the second regular holiday.

WEDNESDAY THURSDAY FRIDAY Entitled to be Paid?

Present REST DAY REGULAR HOLIDAY

YES

Absent with pay REST DAY REGULAR HOLIDAY

YES

Absent without pay

REST DAY REGULAR HOLIDAY

NO

Present SPECIAL DAY REGULAR HOLIDAY

YES

Absent with pay SPECIAL DAY REGULAR HOLIDAY

YES

Absent without pay

SPECIAL DAY REGULAR HOLIDAY

NO

SUCCESSIVE HOLIDAY RULEWED MAUNDY THURS GOOD FRIDAY ENTITLED TO

BE PAID?

PRESENT REGULAR HOLIDAY

REGULAR HOLIDAY

YES –BOTH

ABSENT WITH PAY

REGULAR HOLIDAY

REGULAR HOLIDAY

YES-BOTH

ABSENT WITHOUT PAY

REGULAR HOLIDAY

REGULAR HOLIDAY

NO –BOTH

ABSENT WITHOUT PAY

WORKED REGULAR HOLIDAY

YES – but only to the holiday pay on Friday

Art. 95. Right to Service Incentive Leave• CONCEPT:• 5 DAYS leave with pay for every employee who has

rendered at least 1 year of service

• One year of service• Service within 12 months whether continuous or broken,

reckoned from the date the EE started working including authorized absences and paid regular holidays unless the number of working days in the establishment, as a matter of practice or policy or as provided in the EE contract is less than 12 months

SIL does not apply to the FF

1. Already enjoying said benefits

2. Already enjoying vacation leave with pay for at least 5 days

3. Employed in establishments regularly employing less than 10 employees, and

4. Employed in establishments exempted from granting this benefit by the SOLE

Exceptions• Section II, Rule 1, Book III, Rules implementing the LCP

1.Government employees

2.Domestic helpers

3.Managerial employees

4.Field personnel

5.Workers paid by results

LEAVES WITH PAYI. SERVICE INCENTIVE LEAVEMandatory: 5 days SILP (Art. 95)•Optional: More than 5 days such as 15 days sick leave and 15 days vacation leave•Once given, it cannot be unilaterally withdrawn nor diminished. (Art. 100)•Service requirement: 1 year (whether continuous or broken, to be reckoned from the date the ee started working)•Convertible to cash•Exceptions

1. Government employees2. Domestic helpers3. Managerial employees4. Field employees5. Establishments employing less than 10 workers6. Those who are already enjoying vacation leaves for at least 5 days

• How about VACATION & SICK LEAVE?• Not statutorily required, it is a matter of management

discretion or a product of CBA

• Gen. Rule. Benefits are non-cumulative and non-commutative, must be enjoyed by the EE within 1 year, otherwise, they are considered waived or forfeited.

• Exception:• When the LCP / established practice of the ER provides

otherwise.

LEAVES WITH PAY

MATERNITY LEAVE•60 days for ordinary delivery; 78 days for caesarian delivery•1st four deliveries, either normal, abortion or miscarraige•Legitimate or illegitimate•Service Requirement: the pregnant woman must have rendered service of at least 6 mos. For the last 12 months•The ER must have paid at least 3 months maternity contributions within the 12 month period immediately before the semester of contingency (RA 8282, Art. 133)

LEAVES WITH PAY

PATERNITY LEAVE

7 days for married male employees, and cohabiting or living together as husband and wife

1st 4 deliveries either normal, abortion or miscarriage. (RA 8187, 7/5/96)

LEAVES WITH PAYSOLO PARENT LEAVE7 days for solo parent (male or female)Who is a SOLO PARENT?

• A woman who gives birth as a result of rape• Widow/widower• Spouse of convict in jail• Spouse of insane• Spouse after legal separation with custody of children• Spouse after declaration of nullity of marriage with custody of children• Spouse abandoned for at least 1 year• Unmarried mother or father with custody of children• Any person who solely provides pastoral care and support to a child• Any family member who assumes responsibility of a parent who

abandons. (RA 8972, 11/7/2000)

LEAVES WITH PAYBATTERED WOMAN LEAVE10 days leave with pay in addition to other paid leaves under the LCP, other laws and company policies•A battered woman is one who is a victim of any act or series of acts of violence committed by any person which resulted to her physical, sexual or psychological suffering•To apply for such leave, the woman EE has to submit a certification from the Brgy. Capt/kagawad/prosecutor/COC that an action under RA 9262 has been filed and is pending•Usage of the 10 day leave is at the option of the woman EE. It shall cover the day or days when she will have to attend to medical and legal concerned•Leaves not availed of are non-cumulative and shall not be convertible to cash (RA 9262)

LEAVES WITH PAY

WOMAN SURGICAL LEAVE•2 months with full pay•Woman ee having rendered continuous service of at least 6 months for the last 12 months shall be entitled to such leave benefit based on her gross monthly compensation following surgery caused by gynecological disorders. (Sec. 18, RA 9710, Magna Carta of Women, 8/14/09)

13th MONTH PAY• Purpose: to help the plight of the working masses to properly

celebrate Christmas and New Year• Conditions• Rendered service at least 1 month• The minimum 13th month pay required by law shall not be less

than 1/12 of the total basic salary earned by the employee within a calendar year

• Paid not later than December 24 each year. ER may give ½ before the opening of the regular school year and the other half on or before December 24 of every year

• An EE who has resigned, whose services were terminated and who has retired at any time before the time of payment of the 13th month pay is entitled to this benefit in proportion to the length of time he worked during the year.

HOLIDAYS WITH PAY• Every worker shall be paid his regular wage during the holiday• 11 regular holidays Jan.1, Holy Thurs, Good Fri, April 9, May 1,

June 12, Last Sunday of August, Nov. 30, December 25, December 30 (EO 203, 6/30/87) and Eid’l Fitr (RA 9177, 11/13/02)

• The ER may require an EE to work on a regular holiday but such employee shall be paid compensation equivalent to twice of 200% of his regular rate (Art. 94)

• If the holiday falls on his scheduled rest day = 260% of his regular wage

• EE shall be entitled to Holiday Pay provided he works the day immediately preceeding a regular holiday or when he is on leave of absence with pay.

• Double holiday: if unworked 200% if worked 400%

Holidays with pay• Exceptions:

1.Government Employees

2.Domestic helpers

3.Managerial employees

4.Field personnel

5.Retail and service establishments employing less than 10 workers

RETIREMENT PAY• Retirement benefits are intended to help the EE enjoy the

remaining years of his life, lessening the burden of worrying about his financial support, and are a form of reward for his loyalty and service to the ER. (Laginlin vs WCC, 159 SCRA 91)

• IN GENERAL: Optional 60 y.o., Compulsory 65 y.o. (Art. 287, RA7641)

• Underground mining: Optional 50y.o., Compulsory 60y.o., (Art. 287, RA 8558)

• Minimum length of service: @ least 5 years

• Retirement benefit:• ½ month pay for every year of service a fraction of at least

6 months being considered as one whole year.

• The term ½ month shall mean• 15 days salary• 5 days equiv. of SIL• 1/12 of 13th month pay

Factors in obtaining 1/12 of the 13th month pay• 392.5/12/12 = 2.72 (Ees who work 365 days in a year)• 365/12/12 = 2.53 (monthly rate employees)• 313/12/12 = 2.17 (daily rate employees)• 261/12/12 = 1.81 (Ees who work 5 days per week)

• MOST COMMON = 15 + 5 + 2.17 = 22.17 days for every year of service

• EXEMPTIONS:• Gov’t ees• Domestic helpers• Retail, service & agricultural establishments employing nor

more than 10 workers (1-10)

SERVICE CHARGES• Shall apply to hotels, restaurants and other similar

establishments

• Distribution rate”• 85% for all covered employees• 15% for management (Art. 96)

MINIMUM WAGE REGION VII

DAILY MINIMUM WAGE RATESREGION VII, Central Visayas

Per Wage Order No. ROVII-16 a/Effective September 22, 2011

INDUSTRY/SECTOR MINIMUM WAGE RATES

CLASS A CLASS B CLASS C CLASS D

Non AgricultureP305.00

P285.00 P275.00 P260.00

Agriculture        

   Non-Sugar 287.00 270.00 255.00 240.00

   Sugar 255.00 255.00 255.00 255.00

Sugar Mills 275.00 275.00 275.00 275.00

SEPARATION PAY• Concept:

• Separation pay is a statutory right designed to provide the employee with the wherewithal during the period he is looking for another employment (Santos vs NLRC, 154 SCRA 166)

• An EE is entitled to Separation Pay equivalent to his one month pay for every year of service. A fraction of at least six months being considered as one year if his separation from service is due to any of the following:

• Installation by the employer of Labor Saving devices• Redundancy (art. 283)

SEPARATION PAY (CONT)• An EE is entitled to separation pay equivalent to one

month pay, or ½ month pay whichever is higher for every year of service a fraction of at least 6 months being considered as one whole year if his separation is due to any of the following causes:

• Retrenchment to prevent losses (i.e. reduction of personnel)• Closure or cessation of operation or undertaking of an

establishment due to serious losses or financial reverses• Disease not curable within a period of 6 months and his continued

employment is prejudicial to his health or to the health of his co-employees (Art. 284)

SEPARATION PAY (Procedure)• Serve a written notice on the workers and the Regional

Director of the DOLE having jurisdiction over the place of business at least one month before the intended termination.