Labor - V. F. Conditions of Work - Development - Normal Hours of Work - Night Shift Differential

F. Conditions of Work - General Rules

1. Hours of Work

a. Regulation/Rationale - (Manila Terminal Co v. CIR) - 8hr law is important because we need rest, if we render overtime, we have to be paid for it. Also creates employment because employers are forced to hire more people to cover the other hours beyond 8.”

b. Coverage/Exemption

c. Normal Hours of Work (LC 83)

Compensable Hours of Work (Book III, Rule I Sec. 3 & 4))

Specific Rules

G. Night Shift Differential (LC 86; Rule II Sec. 1-6)

Rest Period - Rest periods/Coffee breaks running from 5-20 minutes are considered as compensable working time. If in excess of this, not compensable. (Rule I Sec. 4 & LC 84)

General Rule: Normal hours of work shall not exceed (8) days.

Article 83. Normal Hours of Work— The normal hours of work of any employees shall not exceed eight (8) hours a day. Health personnel in cities 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 eight (8) hours a day, for five (5) days a week, exclusive of time for meals except when 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, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel.

Exception - Health Personnel in cities with 1M populaton or in hospitals with a bed capacity of at-least 100. - Here, 8 hrs, 5 days a week. EXCEPT when work requires (6) day or (48) hours.


If latter applies, then additional compensation of at-least 30% of the regular wage on the sixth day.

Meal Period - Generally, Meal periods shall not be less than one hour for regular meals.(LC 85 & Rule I Sec. 7)

Flexible Work Hours (DO 4 2010)

Compressed Work Week (DA No. 2, S. 2004)

III. Concept and Definition
The Labor Code provides that the normal work hours per day shall be 8 hours. Work may be performed beyond 8 hours a day provided the employee is paid for the overtime work. On the other hand, the normal number of workdays per week shall be 6 days, or a total of 48 hours based on the normal workday of 8 hours. This is without prejudice to firms whose normal workweek is five days, or a total of 40 hours based on the normal work day of 8 hours.
For purposes of this Advisory, a CWW scheme is an alternative arrangement whereby the normal workweek is reduced to less than six days but the total number of normal work hours per week shall remain at 48 hours. The normal workday is increased to more than 8 hours without corresponding overtime premium. This concept can be adjusted accordingly in cases where the normal workweek of the firm is 5 days.


IV. Specific Guidelines
Conditions. DOLE shall recognize CWW schemes adopted in accordance with the following:

  1. The CWW scheme is undertaken as a result of an express and voluntary agreement of majority of the covered employees or their duly authorized representatives. This agreement may be expressed through collective bargaining or other legitimate workplace mechanisms of participation such as labor-management councils, employee assemblies or referenda.
  2. In firms using substances, chemicals and processes or operating under conditions where there are airborne contaminants, human carcinogens or noise prolonged exposure to which may pose hazards to the employees’ health and safety, there must be a certification from an accredited health and safety organization or practitioner or from the firm's safety committee that work beyond 8 hours is within threshold limit or tolerable levels of exposure, as set in the OSHS.
  3. The employer shall notify DOLE, through the Regional Office having jurisdiction over the workplace, of the adoption of the CWW scheme. The notice shall be and DOLE CWW Report Form attached to this Advisory.

Effects. A CWW scheme which complies with the foregoing conditions shall have the following effects:

  1. Unless there is a more favorable practice existing in the firm, work beyond 8 hours will not be compensable by overtime premium provided the total number of hours worked per day shall not exceed 12 hours. In any case, any work performed beyond 12 hours a day or 48 hours a week shall be subject to overtime premium.
  2. Consistent with Articles 85 of the Labor Code, employees under a CWW scheme are entitled to meal periods of not less than 60 minutes. Nothing herein shall impair the right of employees to rest days as well as to holiday pay, rest day pay or leaves in accordance with law or applicable collective bargaining agreement or company practice.
  3. Adoption of the CWW scheme shall in no case result in diminution of existing benefits. Reversion to the normal eight-hour workday shall not constitute a diminution of benefits. The reversion shall be considered a legitimate exercise of management prerogative, provided that the employer shall give the employees prior notice of such reversion within a reasonable period of time.

Overtime Work Pay - refers to work performed beyond eight hours a day. (LC 87-90, Book III Rule I Sec. 8-11)

Night Shift - LC 86 - not less than 10% of regular wage for each hour of work performed between 10 PM to 6AM

Coverage - Rule II - Sec. 1 and LC 82 - ALL EMPLOYEES (even public utilities operated by private persons)

Exception-

  1. Those of the government and any of its political subdivisions + GOCCs
  2. Retail and service establishments that regularly employ not more than 5 workers
  3. Domestic helpers and persons in personal service of another
  4. Managerial Employees
  5. Field personnel and other employees whose time and performance is unsupervised - including task/contract/commission/fixed amount of work.

Additional Compensation - Overtime - Rule II - Sec. 3 - If employee made to work on night shift after his regular work schedule - then + atleast 25% of regular wage AND 10% of the overtime rate.

Additional Compensation - Scheduled rest/special holiday - Rule II Sec. 4 - Atleast 30% of regular wage + 10% of the premium pay rate.

Regular Holiday - RII Sec. 5 - Regular wage + 10%

Agreements - RII - Sec. 6 - E-E cant validly withdraw or reduce any benefits, supplements or payments by interpreting these rules.

Managerial Employees/Field Personnel LC 82 -

  1. Managerial - those whose primary duty consists of management + officers or members of managerial staff
  2. Field Employees - Non-agricultural employees who regularly perform duties away from the prinicpal place of business, and whose hours of work in the field cannot be determined with reasonable certainty.

Weekly Rest Periods

Labor Code Provisions

LC 91 - Right to a weekly rest day -

  1. Duty of every employer to provide all employees a rest period of not less than (24) hours after every (6) consecutive normal work days.
  2. Employer shall determine and schedule the weekly rest day of his employees subject to a CBA and rules and regulations as may be implemented by SOLE. Employer shall respect the preference of employees as to weekly rest day if it is based on religious grounds.

LC 92 - When employer may require work on a rest day

  1. CALAMITY - In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life and property or imminent danger to public safety.
  2. URGENT WORK; SERIOUS LOSS - In case of urgent work to be performed on the machinery, etc. to avoid serious loss which the employer would otherwise suffer
  3. PERISHABLE GOODS - to prevent loss or damage to perishable goods
  4. ABNORMAL PRESSURE - In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures
  5. NATURE OF WORK; LOSS - Where the nature of the work requires continuous operations and the stoppage of work may result in irreparable injury or loss to the employer
  6. ANALOGOUS CIRCUMSTANCE - Under other analogous circumstances as may be determined by SOLE.

LC 93 - Compensation for Rest Day, Sunday or Holiday work

  • (a) When employee is made or permitted to work on scheduled rest day - 30% - 30% on sunday only if its also rest day

  • (b) If nature of work means no regular workdays and regular rest days, then 30% additional if work is on sunday or holiday


  • (c) Special Holiday -- 30% - but if Special Holiday work is also on rest day, 50%

  • (d) Where CBA or other contract stipulates higher premium pay, that applies.

Omnibus Rules - Book III - Rule III - Sec. 1-9

Sec. 1 - Coverage - All employers, including public utilities.

Sec. 2 - Business on Sunday/Holidays - All businesses can open on sundays and holidays provided that employees given rest day and benefits

Sec. 3 Weekly Rest Day - (24) hrs after every (6) consecutive work days.

Sec. 4 Preference of Employee - Preference of Rest day of employee preferred if religious grounds. Preference made known 7 days before effectivity of the initial rest day in writing.


But, if choice of rest day will result in serious prejudice or obstruction to the operations of the undertaking and employer cant resort to other remedial measures, employer can schedule weekly rest day of his choice for atleast (2) days in a month.

Sec. 5 Schedule of Rest Day -
(a) If weekly rest is given to all employees simultaneously, employer shall make known the rest period by posting a written notice conspicuously posted in workplace 1 week before effectivity
(b) If rest period not simultaneously and collectively - same 1 week written notice - but respective weekly schedules of rest.

Sec. 6 When Work on rest day Authorized - same as LC 92 - additional that no employee shall be required to work against his will to work on scheduled rest day, except under the above circumstances. Provided that when employee volunteers - desire shall be in writing, subject to provisions of Sec. 7 re: addiitional compensaiton.

Sec. 7 Compensation on rest/sun/holiday - same as LC 93 - additional that payment for work on regular holiday under rule IV Book III.

Sec. 8 - Paid-off-days -- Nothing in rules shall justify reduction of compensation for unworked Sundays, holidays or other rest days which are considered paid-off days or holidays by agreemnt or practice, subsisting upon effectivity of Code

Sec. 9 - Relation to Agreements - Nothing shall prevent E-E from entering into agreements with terms more favorable to employees OR to diminish any benefit granted to employees under existing laws, agreements or voluntary employer practices.

Premium Pay (LC 94B & Rule IV S.4)

LC 94b - Right to Holiday Pay - Employer may require employee to work on holiday but must pay compensation equivalent to twice the regular rate.

Book III, Rule IV, Sec. 4 - Compensation for Holiday Work - Employee permitted or suffered to work on any regular holiday, not exceeding (8) hours shall be paid atleast 200% of his regular daily wage.


  • If holiday on scheduled rest day, then additional premium of atleast 30% of regular holiday rate of 200% based on his regular wage rate.

Holidays

LC 94 - Right to Holiday Pay

  1. GR - Every worker shall be paid regular daily wage during regular holidays,
  2. XCPN -
  • Retail and service establishments regularly employing less than 10 workers.

Does not apply to managerial and field employees.

Definitions

  1. Retail establishment R VII, Sec. 1f - Retail Establishment is one principally engaged in the sale of goods to end-users for personal or household use.


  2. R VII, Sec. 1g - Service Establishment one primarily engaged in the sale of service to individuals for their own or household use and is generally recognized as such.

Faculty in Private School - Rule IV Sec. 8a - Holiday Pay of Certain Employees - - Private school teachers, including faculty members of colleges and universities may not be paid for the regular holidays during semestral vacations. But paid for regular holidays during Christmas vacation.

Absences (Rule IV)

Sec. 6a Absences - All covered employees entitled to the benefit provided therein if they are on leave of absence with pay.


If absent without pay on the day immediately preceding a regular holiday, they may not be paid the required holiday pay if they didn't work on the regular holiday.

Sec. 10 Successive Regular Holidays - Where (2) or more succesive regular holidays - employee may not be paid for both holidays


IF he absents himself from work on the day immediately preceding the first holiday, unless he works on the first holiday. If they do, then entitled to holiday pay on the 2nd holiday.

Non-Working/Schedule of Rest Day Sec. 6c - If day immediately preceding the holiday is non-working day in the establishment or scheduled rest day, then employee shall not be deemed to be on leave of absence on that day.


In which case, employee shall be entitled to the holiday pay if he worked on the day immediately preceding the non-working/rest day.

Q. of NGOs that do not employ more than 5 workers. Under LC, those are also not exempted from providing the benefits under Book III.

Including those who work on night shift on a regular basis. For those who work on night shift covered by Ch. V of LC (154-161) in addition to the benefits here.

Night work - those who work from 10 to 7 (8 hrs of work). Night shift differential covers only 10 to 6. (RA 10151)

Note that the x2 wage applies only for regular holiday. NOT special holidays.

Pakyaw personnel - usually ranked with field personnel UNLESS there is a showing that they are supervised. Because Pakyaw is just a method of payment. If proven that unsupervised then no need.

General Rule: Employee can't be compelled to work on rest day.
Exception: LC 92

If regular holiday - then entitled to 100% of regular wage.

Monthly Wage - Daily rate x days of month


Daily Wage - monthly wage / days worked.

Regular Holidays - expanded, added Eid al fitr and Eid al adha

  • New Years, Maundy Thurs, Good Fri, April 9, May 1, June 12, July 4, Nov. 30, Dec. 25 and 30 and any day designated for a general election

Special Holiday - Ninoy Aquino day, All Saints day, Dec. 31, Feast of the Immaculate Conception of Mary

Divisor - when wage is paid on a monthly salary basis, formula is


salary x months worked / total days worked

Waiting Time - If such time is integral part of work or the employee is required or engaged by the employer to wait, compensable working hours.(Rule I Sec. 5)

Work Interruption - If interruption due to reasons beyond control of employee compensable IF: interval too brief to be utilized effectively and gainfully in employee's own interest or imminent resumption of work requires employee's presence.(Book III Rule I Sec. 4d)

Work After Normal Hours - If work is done with the knowledge of the employer or immediate supervisor AND (1) Necessary or Benefit the employer; (2) Employee could not abandon his work at the end normal working hours. (Book III Rule I Sec. 4c)

DA No. 4, series of 2010. (Flexible Work Arrangement)
II. Concept:
Flexible work arrangements refer to alternative arrangements or schedules other than the traditional or standard workhours, workdays and workweek. The effectivity and implementation of any of the flexible work arrangements shall be based on voluntary agreements between the employer and the employees.
The adoption of the flexible work arrangements provided herein shall in no case result in diminution of existing benefits of the employees.


III. Flexible work arrangements-- The following are the flexible work arrangements which may be considered, among others:

General Rule - All employees of establishments are entitled to provisions on LC working conditions and Rest Period. (LC 82)

Exceptions -

  • (1) Governmental Employees;
  • (2) Managerial Employees;
  • (3) Field Personnel 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;
  • (4) Members of the family of the employer who are dependent on him for support;
  • (5) Domestic Helpers;
  • (6) Persons in the personal service of another;
  • (7) Workers who are paid by results as determined by the SOLE in appropriate regulations.

Government Employees - Only GOCCs which are registered with the SEC under the Corporation Code are covered by the Labor Code.

Managerial Employees - Covers(LC 291)

(1) Managerial Employees - have the power or prerogative to lay down and execute management policies, hire, transfer, suspend lay-off, recall, discharge, assign or discipline employees.

(2) Supervisory Employees - Has the power to effectively recommend managerial actions and such authority is not merely routine or clerical in nature but requires use of independent judgment.

(3) Managerial Staff - have duties which consists of performance of work directly related to management policies of the employer.

Field Personnel - those who work away from the principal place of business and whose actual hours of work in the field cannot be determined with reasonable certainty. (Book III Rule I Sec. 2)

Dependent Family Members - Family members who are entitled to support are not entitled to provisions on Working Conditions and Rest Period (LC 82)

Domestic Workers - persons engaged in domestic work. Excluding those who work occasionally/sporadically and children who are under a foster family arrangement that are provided with access to education and allowance incidental to the same. (LC 139)

Personal Service of Another - Persons in the personal service of another that perform services in the employer's home which are usually necessary or desirable for the maintenance and enjoyment thereof OR minister tot he personal comfort, convenience or safety of the employer's household. (Book III, Rule I Sec. 2)

Piece Workers - Must also be field workers in order to be excluded.(Book III, Rule I Sec. 2)

General Rule - All hours which the employee is required to give to the employer, regardless if such time was spent in productive labor.

Inactive - The time which an employee is inactive by reasons of interruptions due to work beyond control shall be considered working time IF:

(a) Imminence off the resumption of work requires the employee's presence at the place of work

(b) If the interval is too brief to be utilized effectively and gainfully in the employee's own interest.

Meal Period in Company - An employee is not required to be within the company premises during the meal period. (Philippine Airlines v. NLRC)

Exception - Meal period may be 20 mins - 1 hr if:

  • a. STRENUOUS - Non-manual work or does not involve strenuous physical exertion;
  • b. NOT LESS THAN 16 HOURS - Where the establishment operates not less than 16 hours a day;
  • c. EMERGENCY/SERIOUS LOSSES - Where there is actual or impending emergencies or urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would suffer;
  • d. SERIOUS LOSS PERISHABLE - Where the work is necessary to prevent serious loss of perishable goods.

Training Programs - General Rule: Attendance at lecturs, meetings and training programs considered as working time. (Book III, Rule I Sec. 6)

On call - If employee required to remain on call in the employer's premises or close thereto such that they cannot use time effectively and gainfully for their own purpose, waiting time is considered as working hours.(Rule I Sec. 5b)

Not On Call - if employee required to leave word at home or with company officials where he may be reached is not working while on call.

Travel Time (Rada v. NLRC) -

  1. GR - Non-compensable.
  2. XCPN - If the work assigned to an employee beyond normal working hours is indispensable and consequently mandatory, then the overtime rendered should be compensated..
  • Time spent traveling from jobsite to jobsite during the workday is working hour.
  • Similarly, travel that keeps employee away from home overnight is worktime if it cuts across normal workday.

Exception - (a) Attendance is outside regular working hours of employee; (b) Attendance is voluntary; (c) Employee does not perform any productive work during such attendance.

Overtime in Ordinary Working Day - Overtime compensation is equivalent to regular wage + 25% of regular wage. (LC 87)

Overtime on holiday/Rest Day - Ordinary rate + 30% of daily rate. If rest day is during holiday, 30% for holiday and 30% for rest day.

Double Rate - Here, if work was done during holiday/rest day double base rate.

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1. Compressed Workweek (RA 11165;Telecommuting Act -

  • Where the normal workweek is reduced to less than 6 days but the total number of work hours of 48 hours per week shall remain.
  • The normal workday is increased to more than eight hours but not to exceed twelve hours, without corresponding overtime premium.
  • The concept can be adjusted accordingly depending on the normal workweek of the company pursuant to the provisions of Department Advisory No. 02, series of 2004, dated 2 December 2004.
  1. Gliding or Flexi-time schedule - refers to one where the employees are required to complete the core workhours in the establishment but are free to determine their arrival and departure time. -
  1. Flexi-holidays schedule - refers to one where the employees agree to avail the holidays at some other days provided there is no diminution of existing benefits as a result of such arrangement.
    The employers and the employees may likewise explore other alternative work arrangements under any agreement and company policy or practice in accordance with existing laws and guidances.

Emergency or Compulsory Overtime Work (LC 89, Rule 1 Sec. 10)

Undertime Work/Leave (LC 88) - Overtime work cannot offset undertime work.

Additional Compensation (LC 87; Rule 1 Sec 9) -

Proof of Work/Employer Obligation - Burden of proof on the employer to show that there was payment or other compliance with employer obligation as they have access to the records of employment. (SSS v. CA)

General Rule - Overtime work is voluntary. However, can be made compulsory if:

(A) War/Emergency - Country is at war or when any other national or local emergency has been declared by Chief Exec or National Assembly

(b) Loss - 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 a calamity.

(c) Urgent Work - Where 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) Perishable - when work is necessary to prevent loss or damage to perishable goods.

(e) Eight Hour - When 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.

(f) Weather - When overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.

Integration - Overtime pay may be integrated in daily wage rate provided that:

  • (1) Clear written agreement knowingly and voluntarily entered into by employee;
  • (2) Mathemathical computation shows that agreed legal wage rate and overtime pay are equal or higher than amounts separately computed

Househelpers (RA 10361) - https://www.officialgazette.gov.ph/2013/01/18/republic-act-no-10361/

Telecommuting Act -Ttelecommuting" refers to a work from an alternative workplace with the use of telecommunications and/or computer technologies.

Section 4. telecommuting Program. -

  • GR - An employer in private sector may offer a telecommuting program to its employees on a voluntary bases, and upon such terms and conditions as they may mutually agree upon:
  • Such terms and conditions shall not be less than the minimum labor standards set by law, and shall include compensable work hours, minimum number of work hours, overtime, rest days, and entitlement to leave benefits.
  • In all cases, the employer shall provide the telecommuting employee with relevant written information in order to adequately apprise the individual of the terms and conditions of the telecommuting program, and the responsibilities of employee.

I. Jobstart PH Act (RA 10869 and IRRs.)

J. Anti-Age Discrimination in Employment Act (RA 10911)

This was designed 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 eight hours each.

  • Holiday -
    includes New Years, Maundy Thurs, Good Fri, April 9, May 1, June 12, July 4, Nov. 30, Dec. 25 and 30 and any day designated for a general election