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Labor - VI - F. Service Incentive Leave - One-year Service Minimum …

- - - - Prescriptive period is computed from the time the cause of action accrues. In SIL, employee can either use leave credits or commute it to its monetary equivalent. If he chooses neither, he is entitled to the accrued amount upon resignation or separation. (Autobus)
        
        If he commutes the leave credits, the cause of action accrues from the moment the employer refuses to remunerate the equivalent amount.
        If he chooses to commute upon resignation or separation, then cause of action accrues upon refusal of the employer as well.
        
        Makati Haberdashery - Piece-rate workers not entitled to SIL - but later overturned in Labor Congress v. NLRC
        
        Real Test - if piece-rate workers are supervised. If yes, then entitled to SIL.
        
        Flow: Check if employee --> Check if under exemption (Field personnel/Piece-rate) --> If yes, check if under supervision and control. If SC then entitled.
    - - SECTION 3. Definition of certain terms. — The term "at least one year service" shall mean service for not less than 12 months, whether continuous or broken reckoned from the date the employee started working, including authorized absences and paid regular holidays unless the working days in the establishment as a matter of practice or policy, or that provided in the employment contract is less than 12 months, in which case said period shall be considered as one year.
        
        SECTION 5. Treatment of benefit. — The service incentive leave shall be commutable to its money equivalent if not used or exhausted at the end of the year.
    - - SIL - shall be commutable to its money equivalent if not used or exhausted at the end of the year.
  - - - RULE V Service Incentive Leave SECTION 1. Coverage. —
        This rule shall apply to all employees except:
        (a) Those of the government and any of its political subdivisions, including government-owned and controlled corporations;
        (b) Domestic helpers and persons in the personal service of another;
        (c) Managerial employees as defined in Book III of this Code;
        (d) Field personnel and other employees whose performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof;
        (e) Those who are already enjoying the benefit herein provided;
        (f) Those enjoying vacation leave with pay of at least five days; and
        (g) Those employed in establishments regularly employing less than ten employees.
- - - - Service Charges
        
        Art. 96 . Service Charges. - All service charges collected by hotels, restaurants and similar establishments shall be distributed completely and equally among the covered workers except managerial employees. In event that the minimum wage is increased by law or wage order, service charges paid to the covered employees shall not be considered in determining the employers compliance with the increased minimum wage. To facilitate resolution of any dispute between the management and the employees on the distribution of service charges, a grievance mechanism shall be established. If no grievance mechanism is established or if inadequate, the grievance shall be referred to the regional office of the Department of Labor and Employment which has jurisdiction over the workplace for conciliation. For purposes of this article, managerial employees refer to any person vested with powers of prerogatives to lay down and execute management policies or hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees or to effectively recommend such managerial actions.
        
        DO 206-19.
        Sec. 1. Coverage. - This rule shall apply to all establishments collecting service charges such as
        hotels, restaurants and other similar establishments including those entities operating primarily as
        private subsidiaries of the government.
        Sec. 2. Definition of terms. - As used in this Rule, the following terms are defined as follows:
        a. Covered employees refer to all employees , except managerial employees as defined
        herein, under the direct employee of the covered establishment, regardless of their
        positions, designations or employment status, and irrespective of the method by which
        their wages are paid.
        b. Covered establishments refer to those that collect service charge for work or service
        they offer.
        c. Managerial employees refer to any person vested with powers or prerogatives to lay
        down and execute management policies or hire, transfer, suspend, lay-off, recall,
        discharge, assign or discipline employees or to effectively recommend such managerial
        actions.
        d. Other similar establishments refer to those entities that collect service charge for work
        or service rendered, such as, but not limited to, lodging houses, night clubs, cocktail
        lounges, massage clinics, bars, casinos and gambling houses, and sports clubs .
        e. Service charge refers to the amount that is added to the bill for work or service
        rendered.
        
        LC 96 as amended by DO 206-19
        Sec. 3. Distribution of service charges. - All service charges actually collected by covered
        establishments shall be distributed completely and equally, based on actual hours or days of work
        or service rendered, among the covered employees, including those already receiving the benefit
        of sharing in the service charges .
        Sec. 4. Frequency of distribution. - The shares referred to herein shall be distributed and paid to
        the covered employees not less than once every two (2) weeks for twice a month at intervals not
        exceeding sixteen (16) days.
        
        DO 206-19. Sec. 6. Dispute resolution. - Any dispute or difference on the distribution of service
        charges shall be settled through the grievance machinery as provided in the Collective Bargaining
        Agreement (CBA). In unorganized establishments, where no grievance mechanism is established or the grievance
        mechanism is inadequate, the grievance shall be referred to the DOLE Regional Office which has
        jurisdiction over the workplace, for conciliation.
        Unresolved grievances shall be resolved in accordance with existing rules and regulations on the
        visitorial and enforcement power of the Secretary of Labor and Employment and his/her duly
        authorized representatives.
        
        DO 206-19
        Sec. 5. Increase in minimum wage. - In the event that the minimum is increased by law or wage
        order, service charges paid to the covered employees shall not be considered in determining the
        covered establishment’s compliance with the increased minimum wage.
        
        Coverage - All service charges equally distributed amongst employees.
        
        Save managerial employees or employees under the direct employ of the establishment, regardless of position.
        
        Distribution - Equal distribution based on actual hours of work/service rendered. Including those already receiving the benefit of sharing in the service charges.
        
        Dispute Resolution - If dispute, then grievance mechanism provided in the CBA. If none, then referred to the Dole Regional Office.
        
        Minimum Wage - if minimum wage increased by law or wage order, service charges paid to covered employees shall not be considered in determining the compliance with the new minimum wage.
        
        Integration - In case service charge is abolished, the shares of covered employees shall be considered integrated in their wages. LC 96
        The basis of the amount to be integrated shall be the average monthly share of each employee for the past 12 months immediately preceding the abolition or withdrawal of the charges. Sec 5, Rule VI Book III, IRR
        
        In relation to CBA and E-E Agreements -
        Nothing in the Rules shall prevent the employer and employee from entering into any agreement with terms more favorable to the employees than those granted therein, or be used to diminish any benefit granted to the employees under existing laws, agreements AND voluntary employer practice. Sec 6 Rule VI, Book III, IRR.
        The rule is without prejudice to existing, future CBA. Sec. 7 Rule VI, Book III, IRR.
        
        Distributed not less than every two weeks, or twice a month (basta 16 day intervals)
        
        Managerial Employees - Can effectively recommend managerial actions. This means that employee listens i.e. an effective recommendatory powers. Covers supervisors upwards.
        
        What does direct employ mean?
      - Maternity (RA 11210)
        
        Battered Woman (Victim Leave) RA 9262
        
        Gynecological Leave RA 9710
        
        (60) days or (2) months. Granted only upon determination of the physician of the required amount of time for recovery.
        
        Conditions for Entitlement - atleast (6) months continuous service within a (12) month minimum period of employment prior to the surgery.
        
        Non-convertible benefit. Different from sick-leave benefits.
        
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        DURATION - (10) day paid leave of absence. Extendible when the necessity arises as specified in the protection order.
        
        DURATION - (105) days maternity leave with full pay.
        
        EXTENSION - (30) days without pay.
        
        SOLO PARENT - Additional (15) days with pay.
        
        WHEN AVAILED - In every instance of pregnancy. But, if miscarriage or emergency termination then (60) days.
        
        ALLOCATION TO FATHER - (7) days of benefits may be given to child's father OR alternate caregiver in the father's death, absence or incapacity.
    - - Benefits - No Work Discrimination, Parental Leave, Flexible Work Schedule
        
        Employer - shall provide for a flexible work schedule so long as it does not affect individual or company productivity.
        
        Can request exemption from DOLE on meritorious grounds.
        
        If public employee, subject to agency head discretion.
        
        Criteria for Support - Solo parent whose income falls below proverty threshold set by NEDA and assessed by DSWD worker in the area entitled to support.
        If solo parent non poverty, still entitled to Flexi Work, no work Discrimination and Parental Leave.
        
        If poverty - Solo parent seeking assistance other than those provided in Sec. 16-21 of the implementing rules - requires certification of barangay captain. If transferee from another barangay, clearance from captain of previous barangay - clearance to show w/n they availed of benefits for solo parnets and nature of benefits availed.
        Must be (1) Poverty; (2) Certified by Barangay.
        
        General Rule: Entitled to Work Benefits, regardless of Economic Status.
        Only if availment of support i.e. other non-work benefits such as support, requires poverty threshold and certification of Barangay.
        
        Conditions for availment of Parental Leave - Must: (1) render one year of service; (2) Notified employer of availment within a reasonable period; (3) Presented Solo parent ID card to employer.
        
        Commutation - Parental Leave not convertible to cash. UNLESS there is an agreement between the parties.
        
        If leave is denied - leave can be used as the computation for damages.
        
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        Flexi Hours - arrival and departure time can be changed. So long as total hours of work rendered are the same.
      - Solo Parent -
        
        (1) Woman give birth due to crimes against chastity if mother keeps and raises the child;
        
        (2) Parent left solo due to spouse death
        
        (3) Parent left solo due to conviction or detained of spouse for a year
        
        (4) Solo because physical/mental incapacity provided that med certificate from public medical practicioner
        
        (5)Separation de facto for at-least one year where child is in custody
        
        (6) Left solo due to annulment/nullity of marriage
        
        (7) Abandonment of at least one year
        
        (8) Unmarried who kept child
        
        (9) Any other person who provides parental care/support to child - must be legal guardian or licensed foster parent.
        
        (10 Any family member who assumes responsibility as family head, following death, abandonment, disappearance or prolonged absence of solo parent.
  - - - SECTION 7. Non-Conversion of Benefits. — In the event that the paternity leave benefit is not availed of, said leave shall not be convertible to cash.
        
        SECTION 8. Penalty. — Any person, corporation, trust, firm, partnership, association or entity found violating any provision of these Rules shall be penalized by a fine not exceeding twenty five thousand pesos (P25,000) or imprisonment of not less than thirty (30) days nor more than six (6) months. If the violation is committed by a corporation, trust or firm, partnership, association or any other entity, the penalty of imprisonment shall be imposed on the entity's responsible officers, including, but not limited to, the president, vice-president, chief executive officer, general manager, managing director or partner directly responsible therefor. SECTION 9. Non-diminution Clause. — Nothing in these Rules shall be construed to reduce or replace any existing benefits of any kind granted under existing laws, decrees, executive orders; or any contract, agreement or policy between employer and employee.
        
        ARTICLE XV
        The Family
        SECTION 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.
      - Amended - Does not cover abortion.
  - - - Conditions for Entitlement
        
        Benefits and When to Avail
        
        Treatment of Benefits
        
        Penalty
        
        Fine of P25k or less + imprisonment of 30 days to 6 months.
        
        If corporation, then penalty imposed on responsible officers.
        
        Commutability - No conversion to cash.
        
        If there is an existing paternity leave, then benefits cannot be reduced.
        
        Paternity leave benefits - granted after delivery. Without prejudice to availment before, or during the delivery so long as total number of days not more than 7 days after delivery.
        
        Covers: Full pay - provided that his pay shall not be less than mandated minimum wage.
        
        Delivery - refers to childbirth or miscarriage.
        
        Entitled if: (1) Employee at the time of delivery of child; (2) Cohabiting with spouse at time of delivery; (3) Has applied for paternity leave in accordance with Sec. 4; (4) Wife has suffered a miscarriage or given birth.
        
        Sec. 4 Application for leave - Married male applies within a reasonable period of time from expected date of delivery. Or, within such period as may be set by CBA or company rules, etc. No prior application if miscarriage.
        
        Multiple Wives - (4) deliveries for every wife to which they cohabit.
      - Every married male employee in the private sector.
        (7) days leave with full pay for the first (4) deliveries by his lawful spouse.
        If public sector, then under CSC rules.