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thanks for sharing this post.The Government and any of its political subdivisions, including government-owned and controlled corporations, excepts those corporations operating essentially as private subsidiaries of the Government;
The prerogative is with the employer, whether to require overtime or not. Under these emergency situations, it is the employer who is in the best position to know if the circumstances of the business operations require overtime work.
But in this extreme situation (work for 24 hrs), an employee should be given rest periods. Again, "man is not a machine."
In short, the law did not fix maximum hours for overtime but it provided specific instances when this may be allowed.
As for this question: "Will that be fair for the employee or does she or he have the right to refrain from working the said overtime."
Of course, if the employee thinks he is not capable or does not want to work any longer, then he can refuse by justifiable reasons because that would already result to involuntary servitude. But if his skill or expertise is needed to prevent loss of life or property for example, and he refuses without justifiable excuse, the employer may have some recourse against him in damages. But these things are more specifically covered by civil law.
Article 84,
Hours worked shall include (a) all time during which an employee is required to be on duty or to be at a prescribed workplace; and (b) all time during which an employee is suffered or permitted to work.
"Rest periods of short duration during working hours shall be counted as hours worked."
To be realistic, the 24hour duration of work should not be construed as non-stop working for 24hours. As Vanessa said "the human body is not as durable as a machine" When the requirement to work overtime arises for the circumtances covered by the law, the employer should see to it that the employee will remain capable of doing that extended required duty or work.
The law was created out of justice. And accordingly, justice for both the employer (avoidance of a loss) and the employee (compensation and safety) must be observed and protected. Fundamentally, when the human law is silent, we should go back to the framework of justice and equality.
Before I can answer your question, and to protect the rights of your employees (including the the privilege of the employer), I may need some facts from you as follows:
1. Reason for not entitling them (employees) to overtime pay.
2. Are they monthly paid employees or daily paid employees (based on the employment of contract or CBA)?
Monthly-paid employees are those who are paid every day of the month, including unworked rest days, special days and regular holidays.
Daily-paid employees are those who are paid on the days they actually worked and on unworked regular holidays.
Thank you.
1. we have two sets of employees; the office staff and the people who work in the selling area. the selling area people are definitely daily-paid employees who receive their take home pay weekly. if they don't go to work, they don't receive their pay. we don't have problems computing what their daily and hourly rates are.
i am not so sure about the office staff. their "rates" are definitely higher than that of the selling area people. because their rates are higher, we made it clear to them that they are not entitled to OTs except when they work straight (open and close the store). we don't even deduct them for lates, unlike the selling area people. what we ask of them is to complete the 9 hours (including 1 hour meal break). if their official time-in is at 8 am, we don't deduct lates if they come in at 8:30 am. i think this is what you call the flexi-time schedule. but i can already see some signs of abuse by some staff. as much as possible, we would like them to start at 8 am. i don't mind not deducting their lates but what i do mind is when they are absent. since we are not giving them OTs, can i legally deduct absences? if yes, what factor should i use? by the way, we also pay them holiday pay during holidays.
2. our business is fairly new. we have been lenient to our office staff since we still don't have fixed HR policies. i would like to know if the formula that they have been using is correct (baka mamaya naiisahan na pala kami). currently, i let one of the office staff prepare the payroll.
thanks in advance.
Please be reminded that according to the Labor Code, All employees in all establishments and undertakings whether for profit or not are entitled to overtime pay for work rendered beyond eight (8) hours. But this does not apply to managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results.
Thus, the office staff should be entitled to overtime pay beyond 8 hours. To be fair, if the employee works for less than eight hours, he will be paid only for the corresponding number of hours he had actually worked. If on another day he works beyond the maximum hours, he should be given additional compensation.
For the computation of the hourly rate, you may refer to the following suggestion from http://www.dole.gov.ph/bwc/acrobat_files/hanwag.... (please click to download the pdf file)
A. For monthly-paid employees (those who are paid every day of the month, including unworked rest days, special days
and regular holidays):365 days
B. For daily-paid employees:
1. For those who are required to work everyday including Sundays or rest days, special days and regular holidays: 391.5days
2. For those who do not work and are not considered paid on Sundays or rest days: 314 days
** Factors 312 may be used instead of 314, if the two special days under EO 203 are not considered paid.
3. For those who do not work and are not considered paid on Saturdays and Sundays or rest days: 262 days
Please be reminded that this is only based on my research on the matter, it is still recommended to consult with a labor lawyer for a proper legal advisory on the subject.
Thank you.
assenav, we have one station manager. the other one is the assistant station manager. the last one is the finance person. the station manager and assistant station manager do office work (like prepare reports) and manage/supervise all the operations and the selling area people. the finance person does the accounting work (obviously :p )
if i consider the station manager and assistant station manager as "managers" as defined by the labor code, then we should not be giving them OT when they work straight, but we decided to give them. these people also receive holiday pay. if this is the case, in terms of their pay, these 2 employees are not considered "managerial employees" as defined by DOLE because they receive holiday pay and OT. i am just confused with their classification and therefore what factors to use.
the fact that they are given OT pay or other benefits normally for other types of employees, does not matter - what is important is the nature of their functions.
"managerial employees" are not always called "managers," they can be designated in many names but what makes them managerial is the kind of work they perform in the establishment.
Managerial employees, as defined by law are those:
1) whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof; [they formulate policies]
2) who customarily and regularly direct the work of two or more employees therein; [they execute management policies]
3) who have the authority to hire and fire employees of lower rank, or their suggestions and recommendations to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight. [they can impose disciplinary actions]
Your office staff may fall under any of these categories.
anna said: "i am just confused with their classification and therefore what factors to use."
Whether your office staff is monthly paid or daily paid will depend on your company policy or what is stipulated in their employment contracts.
Managerial employees are not covered by the Labor Code provisions on hours of work, holidays, overtime, etc. (Book III, Title I, Labor COde). This is because the nature of their work and the skills, knowledge or expertise they use justly requires higher rates of compensation.
Assuming you consider your managerial employees as monthly paid (which is usual for high-paying jobs), Monthly paid are those paid every day of the month including unworked rest days, special days and regular holidays. BUT NOTE of the words UNWORKED REST DAYS and HOLIDAYS. This does not include UNWORKED WORKING DAYS.
The basic principle governing compensation in the Philippines is "NO WORK NO PAY." Thus, if they are absent on any WORKING day, then they should not be paid. This is based on the 2004 Supreme Court case of Odango vs. NLRC which says that the principle of "no work, no pay also applies to monthly-paid employees. Otherwise, it would be unfair for the employer to be paying for something which the employee did not work for.
I am health worker ( Nurse ) a Senior Officer my duty is 12 Hours/day , I have 7 days off duty in two weeks . I do not have overtime pay instead we are given additional days off . Our hospital is more than 300 bed capacities.
Is my employer violating the labor law in the Philippines
( All employees in all establishments and undertakings whether for profit or not are entitled to overtime pay for work rendered beyond eight (8) hours. But this does not apply to managerial employees.
For health personnel in (1)cities and municipalities with a population of at least one million (1,000,000) or in (2)hospitals and clinics with a bed capacity of at least one hundred (100), their normal hours of work are eight (8) hours a day, for five (5) days a week, exclusive of time for meals. (Article 83, LCP)
Health personnel includes resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel.)
Thank you and welcome to our blog.
With reagard to your question whether your employer is violating the labor law, the Labor code says that...
Overtime work by health personnel in (1)cities and municipalities with a population of at least one million (1,000,000) or in (2)hospitals and clinics with a bed capacity of at least one hundred (100), their normal hours of work are eight (8) hours a day, for five (5) days a week, exclusive of time for meals is, as a rule, not allowed since it involves strenuous physical work considering the number of patients or clients they must attend to. However, they may be compelled to work beyond such hours where the exigencies of the service require that they work for six (6) days or forty-eight (48) hours. But the employer is required to pay an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day.
I hope you've got what I mean.
Thank you.
"Eight (8) hours a day"
Under Art 83 (paragraph 1) this is the regular or normal hours of work for an employee, including health personnel.
In your case, you work for twelve (12) hours a day, that is way beyond the normal, you should be given overtime pay for the excess hours. This is the usual 25%.
The "special rules" mentioned in my article, specifically applies to health personnel falling under the two categories. I mentioned that overtime work by these covered health personnel, is normally not allowed because it involves strenuous physical work, as they have worked already for 40 hours in one week. But in case of exigencies, work on the sixth day or for another 8 hours (total of 48 hrs in all) may be allowed, but they should be given additional compensation for the sixth day (this is now the 30%).
Pardon me but I should have mentioned that this additional payment is the so-called "premium pay." Overtime pay and premium pay are often used interchangeably but they are different although they have the same purpose -- to pay for excess hours of work. Overtime is properly used for working on regular days, while premium is for working on your rest day.
So in your case, you are entitled to overtime pay (25%) for working for more than 8 hours a day. BUT the special rule I mentioned in my article WILL ONLY APPLY to you if you worked for 5 days within a week and then you also worked on the sixth day of that week. This is because the sixth day is supposed to be your rest day since the regular workweek for health personnel is only five days in a week. Compensation for the sixth day is called premium pay because you are compensated for working on your rest day.
If, however, you work for 4 days only in one week, you will not be entitled to the 30% premium pay but you should be paid the 25 % for overtime work (excess hours) for each day.
You said that you are given additional days off in exchange for overtime.
As a rule, waiver of overtime pay is illegal. However, waiver of overtime may be allowed when it is in consideration of benefits and privileges which may be more than what will accrue to the employee in overtime pay. In your case, 7 days off in 2 weeks could be enough consideration for the waiver of overtime. But such waiver should be voluntary and in writing.
Waiver of overtime is also allowed in cases of compressed workweek. Compressed workweek means you will work for say 10 hours a day for 3 or 4 days (anything less than 5) without overtime pay, but you are given more days off. The compressed workweek scheme is however, not allowed, in health services or in hospitals.
NOTE: This answer is based only on my own research and understanding of the law. You are advised to consult a labor lawyer for more understanding. You are also advised to consult your HR officer first and negotiate with management for more favorable conditions of employment.
But i do HOPE this blog helps you in any way. Thanks for subscribing.
Since this article is for private establishments or employers in the private sector, for those who are government employees, for your rights and benefits, you have to refer to the Revised Administrative Code and corresponding rules and regulations applicable to your respective offices, also the Civil Service Rules and other regulations issued by the branch of the government you are connected with.
For overtime pay, this provision in the Revised Administrative Code could be useful:
Sec. 63 (Book VI, Chapter VII) Additional Compensation for Overtime Service. - Officials and employees of the National Government, when required to work overtime after regular working hours during ordinary days, during half-day sessions, or on Saturdays, Sundays and holidays, by the heads of departments concerned, to finish work that must be completed within a specified time, may be paid overtime compensation from any unexpected balance of the appropriation for salaries and wages authorized in the General Appropriations Act and under such guidelines as may be issued by the President.
example, daily rate is P400 and his rest day is sunday.
if he works on Christmas day, his rate for the first 8 hrs will be P800? and for the excess is P130/hr? assuming, Christmas falls on a sunday and he was asked to work, his rate for the 1st 8 hrs will be P1,040? and P169/hr in excess of 8 hrs? thanks....