Q: Lita, a full time professor in San Ildefonso University, is paid on a regular monthly basis. She teaches for a period of 10 months in a school year, excluding the 2 month summer‐break. During the semestral break, the University did not pay her emergency Cost of Living allowance (ECOLA) although she received her regular salary since the semestral break was allegedly not an integral part of the school year and no teaching service were actually rendered by her. In short, the University invoked the principle of "no work, no pay". She seeks your advice on whether or not she is entitled to receive her ECOLA during semestral breaks.
How would you respond to the query?
A: There is no longer any law making it the legal obligation of an employer to grant an Emergency Cost of Living Allowance (ECOLA). Effective 1981, the mandatory living allowances provided for in earlier Presidential Decrees were integrated into the basic pay of all covered employees. Thus, whether the ECOLA will be paid or not during the semestral break now depends on the provisions of the applicable wage order or contract which may be a CBA, that many grant said ECOLA. (1997 Bar Question)
Q: What is the concept of double HP?
A: 2 RH on same day.
WED
MAUNDY THURSDAY & ARAW
NG KAGITINGAN
RATE
Present unworked 200%
LOA w/pay unworked 200%
LOA w/ pay worked 300%
(at least)
Authorized
absence worked 300%
(at least)
Same Worked and day is Rest Day
390%
(+30% of each 3 100%)
Q: Is double HP applicable at present?
A: No, because Araw ng Kagitingan is moved to Monday nearest April 9. (R.A. 9242)
Q: What is the concept of successive RH?
A:
WED MAUNDY
THURS
GOOD FRIDAY
ENTITLED TO HP
Worked RH RH Yes. Both
LOA
w/pay RH RH Yes. Both
LOA w/o
pay RH RH No. Both
LOA w/o
pay Worked RH
Yes. Only to HP on Friday
Q: What are the conditions so that an Ee may be entitled to 2 successive HP?
A: On the day immediately preceding the 1st RH, he must be:
1. Present (worked), or
2. On LOA with pay. (Sec. 10, Rule IV, Book III, IRR)
Q: What if the conditions are not met?
A: He must work on the 1st RH to be entitled to HP on the 2nd RH. (Sec. 10, Rule IV, Book III, IRR)
5.LEAVES
a.Service Incentive Leave Pay
Q: What is service incentive leave (SIL)?
A: It is 5 days leave with pay for every employee who has rendered at least 1 yr of service. It is commutable to its money equivalent if not used or exhausted at the end of year.
Q: What do you mean by at least 1 year of service?
A: 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. (Sec. 3, Rule V, Book III, IRR)
Q: Who are entitled to SIL?
A: GR: Applies to every Ee who has rendered at least 1 year of service. (Art. 95[a])
XPNS:
1. Government Ees and any of its political subdivisions including GOCCs
2. Those already enjoying the benefit 3. Domestic helpers and persons in the
personal services of another
4. Those already enjoying vacation leave with pay of at least 5 days
5. Managerial Ees
6. Field personnel and other Ees whose performance is unsupervised by the Er 7. Employed in establishments regularly
employing less than 10 workers 8. Exempt establishments
9. Engaged on task or contract basis, purely commission basis, or those who are paid in a fixed amount of performing work irrespective of the time consumed in the performance thereof. (Art. 95[b])
Q: Are teachers of private schools on contract basis entitled to SIL?
A: Yes. The phrase "those who are engaged on task or contract basis" should, however, be related with
"field personnel" applying the rule on ejusdem generis that general and unlimited terms are restrained and limited by the particular terms that they follow. Clearly, Cebu Institute of Technology teaching personnel cannot be deemed as field personnel which refers "to non‐agricultural Ees who regularly perform their duties away from the principal place of business or branch office of the Er and whose actual hours of work in the field cannot be determined with reasonable certainty. (Par. 3, Art. 82, LC). (CIT vs. Ople, G.R. No. 70203, Dec. 18, 1987)
Q: Is SIL commutable to its monetary equivalent if not used or exhausted at the end of the year?
A: Yes. It is aimed primarily at encouraging workers to work continuously and with dedication to the company.
Q: What is the basis for cash conversion?
A: The basis shall be the salary rate at the date of commutation. The availment and commutation of
the SIL may be on a pro‐rata basis. (No. VI(c), DOLE Handbook on Worker’s Statutory Monetary Benefit) Q: Are part‐time workers entitled to the full benefit of the yearly 5 day SIL?
A: Yes. Art. 95 of Labor Code speaks of the number of months in a year for entitlement to said benefit.
(Bureau of Working Conditions Advisory Opinion to Phil. Integrated Exporter’s, Inc.)
Q: Are piece‐rate workers entitled to the full benefit of the yearly 5 day SIL?
A: It depends.
1. Yes. Provided:
a. They are working inside the premises of the employer (Er) and
b. Under the direct supervision of the Er.
2. No. Provided:
a. They are working outside the premises of the Er
b. Hours spent in the performance of work cannot be ascertained with reasonable certainty
c. The are not under the direct supervision of the Er
Q: Does it apply to Ees with salaries above minimum wage?
A: No. The difference between the minimum wage and the actual salary received by the Ees cannot be deemed as their 13th month pay and SIL pay as such difference is not equivalent to or of the same import as the said benefits contemplated by law.
(JPL Marketing Promotions v. CA, G.R. No. 151966, July 8, 2005.)
Q: Explain the entitlement of terminated Ees to SIL.
A:
1. Illegally dismissed Ees ‐ entitled to SIL until actual reinstatement. (Integrated Contractor and Plumbing Works, Inc. v.
NLRC, G.R.No. Aug.9, 2005)
2. Legally dismissed Ees – the Ee who had not been paid of SIL from outset of employment is entitled only of such pay after a year from commencement of service until termination of employment or contract. (JPL Marketing Promotions v.
CA, G.R. No. 151966, July 8, 2005)
b.Maternity Leave
Q: What is maternity leave benefit?
A: A covered female employee (Ee) is entitled to a daily maternity benefit equivalent to 100% of her present basic salary, allowances and other benefits or the cash equivalent of such benefits for 60 days or 78 days in case of caesarian delivery.
Q: What are the requirements in order that maternity benefits may be claimed?
A:
1. There is childbirth, abortion or miscarriage
2. She has paid at least 3 monthly contributions
Q: What are the conditions?
A:
1. The Ee shall have notified her employer (Er) of her pregnancy and the probable date of her childbirth which notice shall be transmitted to the SSS
2. The payment shall be advanced by the Er in 2 equal installments within 30 days from the filing of the maternity leave application
3. In case of caesarian delivery, the Ee shall be paid the daily maternity benefit for 78 days
4. Payment of daily maternity benefits shall be a bar to the recovery of sickness benefits for the same compensable period of 60 days for the same childbirth, abortion, or miscarriage
5. The maternity benefits provided under Section 14‐A shall be paid only for the first four deliveries
6. The SSS shall immediately reimburse the Er of 100% of the amount of maternity benefits advanced to the Ee by the Er upon receipt of satisfactory proof of such payment and legality thereof; and
7. If an Ee should give birth or suffer abortion or miscarriage without the required contributions having been remitted for her by her Er to the SSS, or without the latter having been previously notified by the Er of the time of the pregnancy, the Er shall pay to the SSS damages equivalent to the benefits which
said Ee would otherwise have been entitled to, and the SSS shall in turn pay such amount to the Ee concerned.
c.Paternity Leave
Q: What is the concept of paternity leave benefits?
A: Notwithstanding any law, rules and regulations to the contrary, every married male employee in the private and public sectors shall be entitled to a paternity leave of 7 days with full pay for the first 4 deliveries of the legitimate spouse with whom he is cohabiting.
Q: What is paternity leave?
A: It refers to the benefits granted to a married male employee allowing him not to report for work for 7 days but continues to earn the compensation therefore, on the condition that his spouse has delivered a child or suffered a miscarriage for purposes of enabling him to effectively lend support to his wife in her period of recovery and/or in the nursing of the newly‐born child.
Q: What are the requirements in order to avail paternity leave?
A: The male employee (Ee) applying for paternity leave shall:
1. Notify his employer (Er) of the pregnancy of his legitimate spouse and
2. The expected date of such delivery.
Q: What are the conditions for entitlement to paternity leave?
A: The male Ee is;
1. Legally married to, and is cohabiting with the woman who delivers the baby 2. Ee of private or public sector;
3. Only for the first 4 deliveries of legitimate spouse with whom he is cohabiting; and 4. Notify his Er of the pregnancy of his
legitimate spouse and the expected date of such delivery
Note: For purposes of this Act, delivery shall include childbirth or any miscarriage.
Q: Jemuel is a bank employee of BPI. He is cohabiting with Paula for straight five years with whom he has four children. On the fifth year of their cohabitation, Paula had her miscarriage.
Jemuel is availing himself of his paternity leave. Is he entitled to paternity leave?
A: No. Jemuel is not entitled to paternity leave because the facts of the case only show that he is only cohabiting with Paula. The law expressly provides that the male must be legally married to the woman with whom he is cohabiting as a condition for entitlement of paternity leave. Even assuming that Jemuel is legally married to Paula, he cannot avail also of the paternity leave because the law limits the deliveries only to four which include childbirth or miscarriage. Based on the facts, it is already the fifth delivery of the woman.
d.Parental Leave Q: What is parental leave?
A: Leave benefits granted to a solo parent to enable him/her to perform parental duties and responsibilities ‐ where physical presence is required.
In addition to leave privileges under existing laws, parental leave of not more than 7 working days every year shall be granted to any solo parent Ee who has rendered service of at least 1 year. (Sec. 8)
Q: What are the conditions for entitlement of parental leave?
A:
1. He or she must fall among those referred to as solo parent
2. Must have the actual and physical custody of the child or children
3. Must have at least rendered service of one year to his or her employer
4. He or she must remain a solo parent
Q: Who are those referred to as solo parent entitled to parental leave?
A: Any individual who falls under any of the ff.
categories:
1. A woman who gives birth as a result of rape and other crimes against chastity even without a final conviction of the offender, provided, That the mother keeps and raises the child;
2. Parent left solo or alone with the responsibility of parenthood due to:
a. Death of spouse;
b. Detention or service of sentence of spouse for a criminal conviction for at least 1 yr;
c. Physical and/or mental incapacity of spouse
d. Legal separation or de facto separation
he/she is entrusted with the custody of the children;
e. Nullity or annulment of marriage as decreed by a court or by a church as long as he/she is entrusted with the custody of the children;
f. Abandonment of spouse for at least 1 yr;
3. Unmarried mother/father who has preferred to keep and rear his or her child/children instead of:
a. having others care for them or b. give them up to a welfare institution;
4. Any other person who solely provides:
a. parental care and
b. support to a child or children;
5. Any family member who assumes the responsibility of head of family as a result of the:
a. death, b. abandonment, c. disappearance or
d. prolonged absence of the parents or solo parent.
Note: A change in the status or circumstance of the parent claiming benefits under this Act, such that he/she is no longer left alone with the responsibility of parenthood, shall terminate his/her eligibility for these benefits. (Sec.3)
e.Leaves for victims of violence against women
Q: What is the leave for victims of violence against women or otherwise known as battered woman leave?
A: A female employee who is a victim of violence (physical, sexual, or psychological) is entitled to a paid leave of 10 days in addition to other paid leaves. (R.A. 9262, Anti‐ VAWC Act)
6.SERVICE CHARGES
a.Coverage and Exclusion
Q: What are service charges (SC)?
A: These are charges collected by hotels, restaurants and similar establishments and shall be distributed at the rate of:
COVERED Ees MANAGEMENT
85% 15%
Equally distributed
1. To answer for losses and breakages and
2. Distributed to Ees receiving
among them more than P2000 a month at the discretion of the management.
Q: Who are covered Ees?
A: GR: All Ees are covered, regardless of their position, designation, employment status, irrespective of the method by which their wages are paid.
Note: Applies only to hotels, restaurants and similar establishment collecting service charges.
XPN: Managerial Ees. (Sec. 2, Rule VI, Book III, IRR)
b.Distribution
Q: When is the share of employee distributed and paid to them?
A: Not less than once every 2 weeks or twice a month at intervals not exceeding 16 days.
c.Integration
Q: What happens if the Service Charge is abolished?
A: The share of the covered Ees shall be considered integrated in their wages on the basis of the average monthly share of each Ees for the past 12 months immediately preceding the abolition.
Note: Service charges form part of the award in illegal dismissal cases.
7.13th MONTH PAY AND OTHER BONUSES
a.Coverage, Exclusion/ exemptions from coverage
Q: What is 13th month pay or its equivalent?
A: Additional income based on wage required by P.D. 851 Requiring all Employers to pay their Employees a 13th month pay which is equivalent to 1/12 of the total basic salary earned by an employee (Ee) within a calendar year.
Q: Who are covered by P.D. 851?
A: GR: All rank‐and‐file Ees regardless of the amount of basic salary that they receive in a month, if their employers (Er) are not otherwise exempted from paying the 13th month pay. Such Ees are entitled to the 13th month pay regardless of said designation of employment status, and irrespective of the method by which their wages are paid.
Provided, that they have worked for at least 1 month, during a calendar year. (Revised Guidelines on the Implementation of the 13th Month Pay Law)
XPN:
1. Government Ees 2. Household helpers
3. Ees paid purely on commission basis 4. Ees already receiving 13th month pay
Q: What would be your advice to your client, a manufacturing company, who asks for your legal opinion on whether or not the 13th Month Pay Law covers a casual Ee who is paid a daily wage?
A: I will advise the manufacturing company to pay the casual Ee 13th Month Pay if such casual Ee has worked for at least 1 month during a calendar year.
The law on the 13th Month Pay provides that Ees are entitled to the benefit of said law regardless of their designation or employment status.
The SC ruled in Jackson Building‐Condominium Corp. v. NLRC, G.R. No. 112546, March 13, 1996, interpreting P.D.851, as follows: Ees are entitled to the 13th month pay benefits regardless of their designation and irrespective of the method by which their wages are paid. (1998 Bar Question) Note: An Er, may give to his Ees ½ of the required 13th Month pay before the opening of the regular school yr.
and the other half on or before the Dec. 24.
Q: Is 13th Month Pay legally demandable?
A: Yes. It is a statutory obligation, granted to covered Ees, hence, demandable as a matter of right. (Sec 1, P.D. 851)
b.Nature of 13th Month Pay
Q: In what form is the 13th month pay paid or given?
A: It is given in the form of:
1. Christmas Bonus 2. Midyear Bonus 3. Profit Sharing Scheme
4. Other Cash bonuses amounting to not less than 1/12 of its basic salary
Note: It must always be in the form of a legal tender.
Q: What are not proper substitutes for 13th Month pay?
A:
1. Free rice
2. Electricity
3. Cash and stock dividends 4. COLA (Sec. 3)
Q: Concepcion Textile Co. included the OT pay, night‐shift differential pay, and the like in the computation of its Ees’ 13th‐month pay.
Subsequently, with the promulgation of the decision of the SC in the case of SMC vs. Inciong (103 SCRA 139) holding that these other monetary claims should not be included in the computation of the 13th month pay, Concepcion Textile Co.
sought to recover under the principle of solutio indebiti the overpayment of the Ees’ 13th‐month pay, by debiting against future 13th‐month payments whatever excess amounts it had previously made.
(1) Is the Company's action tenable?
(2) With respect to the payment of the 13th‐
month pay after the SMC ruling, what arrangement, if any, must the Company make in order to exclude from the 13th‐month pay all earnings and remunerations other than the basic pay?
A: The Company's action is not tenable. The principle of solutio indebiti which is a civil law concept is not applicable in labor law. (Davao Fruits Corp. vs. NLRC, et al., G.R. No. 85073 August 24, 1993). After the 1981 SMC ruling, the High Court decided the case of Philippine Duplicators Inc. vs.
NLRC, GR 110068, Nov. 11, 1993. Accordingly, management may undertake to exclude sick leave, vacation leave, maternity leave, premium pay for regular holiday, night differential pay and cost of living allowance. Sales commissions, however, should be included based on the settled rule as earlier enunciated in Songco vs. NLRC, G.R. No. L‐
50999, March 23, 1990. (1994 Bar Question) Q: Are all Ers required to pay 13th Month Pay under P.D. 851?
A:
GR: Yes. It applies to all Ers,
XPN:
1. Distressed Ers:
a. Currently incurring substantial losses or
b. In the case of non‐profit institutions and organizations, where their income, whether from donations, contributions, grants and other earnings from any source, has consistently declined by more than 40% of their normal income for the
last 2 years, subject to the provision of Sec. 7 of P.D. 851;
2. The Government and any of its political subdivisions, including GOCCs, except those corporations operating essentially as private subsidiaries of the Government;
3. Ers already paying their Ees 13‐month pay or more in a calendar year of its equivalent at the time of this issuance:
4. Its equivalent shall include:
a. Christmas bonus b. Mid‐year bonus
c. Profit‐sharing payments and
d. Other cash bonuses amounting to not less than 1/12th of the basic salary but
5. It shall not include:
a. cash and stock dividends,
a. cash and stock dividends,