HOURS OF WORK Art 82 – Coverage of Title

 Employees in all establishments and undertakings whether for profit or not BUT NOT TO govt employees, managerial employees [those whose primary duty consists of the management of the establishment in which they are employed or of a dept or subdivision thereof, and to other officers or members of the managerial staff], field personnel

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[refer to non-agricultural 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], members of the family who are dependent on him for support, domestic helpers, persons in the personal service of another, workers who are paid by results

 Employer-employee must exist; existence is determined by law, not by contract

Elements of employment relationship (4-fold test)

1. selection and engagement of the employee

2. payment of wages 3. power of dismissal

4. employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished aka control test

evidence of employment: id, vouchers, SSS registration, memorandum, appointment letters, payrolls, organization charts

pakiao workers are considered employees as long as the employer exercises control over the means by which such workers are to perform their work (Zamudio vs NLRC)

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 unregistered association may be deemed an employer

LC defines an employer as any person who acts in the interest of an employer in/directly; the law does not require an employer to be registered in order to be considered as an employer (Orlando Farm Growers vs NLRC)

No employment relationship  job contracting or independent contractor Employer is free to regulate, accdg to his

own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, dismissal and recall of workers so long as the they are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements

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1. govt employees governed by CSC rules EXCEPT govt employees of govt agencies and govt corporations incorporated under the Corporation Code

2. managerial employees or staff 3. outside or field sales personnel 4. employer’s family members 5. domestic helpers

6. persons rendering personal service 7. workers paid by result

Art. 83 – Normal Hours of Work

 8-hour law  prescribes the minimum Art. 84 – Hours worked

 Prelim and postlim activities are deemed performed during working hours, where such activities are controlled or required by the employer and are pursued necessarily and primarily for the employer’s benefit

 Whether waiting time constitutes working time depends on the circumstances of each case  whether it is spent predominantly for the employer’s benefit or for the emmployee’s; considered as working time if waiting is an integral part of his work or if the employee is required or engaged by an employer to wait

 Working while eating  not compensable if completely freed from duites even though he remains in the workplace

 Working while sleeping  may be considered working if it is subject to interruption or takes place under conditions substantially less desirable than would likely to exist at employee’s home

 “on call”  compensable; “within reach through cellphone or other contact device”  not compensable

 Travel from home to work  not worktime EXCEPT when employee receives an emergency call outside of his regular working hours and is required to travel to his regular place of business or some other work site, all of the time spent in such travel is working time

 travel away from home  travel that keeps an employee away from home overnight; worktime

 attendance at lectures, meetings, training programs and other similar activities not considered worktime if it is outside employee’s regular working hours, it is voluntary, and the employee does not perform productive work during such attendance

 time spent in grievence meetings considered worktime

 regular full-time teachers are entitled to salary and emergency cost-of-living allowance during semestral breaks (UPang Faculty Union vs UPANG)

 a laborer need not leave the premises of the workplace in order that his rest period shall not be counted; it is enough that he ceases to work (case in point: seamen)

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Art. 85 – Meal Periods

 GR: not compensable

E: predominantly spent for employer’s benefit or where it is less than 60 minutes (but in no case shall it be shorter than 20 minutes)

Continuous shifts

E to E: shortened break is upon employee’s request Requisites:

1. agree in writing to a shortened meal break and waive overtime pay for such shortened period

2. no diminution in the salary and other fringe benefits

3. work does not involve strenuous physical exertion and are provided w/ coffee breaks 4. value of the benefits derived by the

employees from the proposed work arrangement is equal to or commensurate with the compensation due them

5. overtime pay of the employees will become due and demandable if ever they are permitted or made to work beyond 4:30pm 6. effectivity of proposed working time

arrangement shall be of temporary duration as determined by DOLE

Art. 86 – Night Shift Differential

 not less than 10% of regular wage for each hour of work performed b/w 10pm to 6am

 NSD not waivable since it is founded on public policy

 Burden of proof of payment rests upon the employer Art. 87 – Overtime Work

 Compensation for work rendered in excess of 8 hours a day

 Multiply the overtime hourly rate by the number of hours worked in excess of 8

 Receipt of overtime pay does not preclude right to NSD

 Overtime rate based on regular wage (excludes money received in different concepts and other fringe benefits)

 How “work day” is counted  24-hour period which commences from the time the employee regularly starts to work

 Work in excess of 8 hours w/n a work day is considered as overtime regardless of whether this is performed in a work shift other than at which employee regularly works

 Estoppel and laches cannot be invoked against employees in an action for the recovery of compensation for overtime work

 Overtime pay in arrears retroacts to the date when services were actually rendered

 GR: NO waiver or quitclaim of overtime pay E: waiver is in exchange for certain benefits

 Agreement that overtime pay will be integrated in basic salary is not per se illegal; however, there should have been express agreement to that effect

Jojo Baetiong, Gel Baniqued, Elvira Castro, Denise Dy, Sheryl Harina, Giselle Remulla Page 36 of 103 3B – 2006-2007

and that the mathematical result shows that the agreed legal wage rate and the overtime pay,computed separately, are equal to or higher than the separate amounts legally due

 Compressed workweek (45 hours in 5 days) as an exception to the non-waiver of overtime pay if the following requisites are present:

1. agree in writing to work 9 hours a day from Monday to Friday

2. no diminution in the salary and other fringe benefits

3. value of the benefits that will accrue to the employees under the proposed work schedule is more than or at least commensurate with or equal to the one-hour overtime pay that is due them during weekdays

4. overtime pay of the employees will become due and demandable if ever they are permitted or made to work on weekend

5. work does not involve strenuous physical exertion and are provided w/ coffee breaks

6. effectivity of proposed working time arrangement shall be of temporary duration as determined by DOLE

Art. 88 – Undertime not offset by Overtime Art. 89 – Emergency Overtime Work

1. country is at war or when any national or local emergency has been declared by Congress or the President

2. necessary to prevent loss of life or property or in case of imminent danger to public safety due to impending emergency caused by accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity

3. urgent work to be performed on the machines, ect. In order to avoid loss or damage to employer

4. to prevent loss or damage to perishable goods 5. to prevent serious obstruction ot prejudice to

the business or operations of the employer 6. to avail of favorable weather or

environmental conditions where performance or quality of work is dependent thereon

Art. 90 – Computation of Additional Compensation

 regular wage shall include cash wage only, w/o deduction on account of facilities provided by employer

Chapter II

WEEKLY REST PERIODS