3-a. Hours Of Work.docx

Chapter Three LABOR STANDARDS TOPICS PER SYLLABUS

A. Hours of work 1. Coverage/Exclusions (Art. 82, Labor Code) 2. Normal hours of work a) Compressed work week 3. Meal break 4. Waiting time 5. Overtime work, overtime pay 6. Night work (R.A. No. 10151) , Night shift differential 7. Part-time work 8. Contract for piece work (see Civil Code)

A. HOURS OF WORK 1. COVERAGE/EXCLUSIONS (ArtIcle 82, Labor Code) 1. PROVISIONS ON WORKING CONDITIONS. The provisions on working conditions in the Labor Code are as follows. Article 83 - Normal hours of work; Article 84 - Hours worked; Article 85 - Meal periods; Article 86 - Night shift differential; Article 87 - Overtime work; Article 88 - Undertime not offset by overtime; Article 89 - Emergency overtime work; Article 90 - Computation of additional compensation; Article 91 - Right to weekly rest period; Article 92 - When employer may require work on a rest day; Article 93 - Compensation for rest day, Sunday or holiday work; Article 94 - Right to holiday pay; Article 95 - Right to service incentive leave; and Article 96 - Service charges. 2. COVERAGE. Employees in all establishments, whether operated for profit or not, are covered by the law on labor standards. 3. EXCLUSIONS. The following are excluded from the coverage of the law on labor standards:

a. Government employees; b. Managerial employees; c. Other officers or members of a managerial staff; d. Domestic servants and persons in the personal service of another; e. Workers paid by results; f. Non-agricultural field personnel; and g. Members of the family of the employer.

2. NORMAL HOURS OF WORK 1. NORMAL HOURS OF WORK PER DAY. The total number of working hours shall not exceed eight (8) hours daily. This eight (8) hour period is called the normal hours of work. Any work in excess of eight (8) hours is considered overtime work. 2. EXCEPTIONS: a. Reduction of 8-hour working day by employer. The employer, in the lawful exercise of its prerogative, is not prohibited from reducing the eight-hour normal working time per day provided that no corresponding reduction is made on the employee’s wage or salary equivalent to an eight-hour work day. In instances where the number of hours required by the nature of work is less than eight hours, such number of hours should be regarded as the employee’s full working day. b. Broken hours. The normal eight (8) working hours mandated by law do not always mean continuous and uninterrupted eight (8) hours of work. As may be required by peculiar circumstances of employment, it may mean broken hours of say, four hours in the morning and four hours in the evening or a variation thereof, provided that the total of eight (8) hours is accomplished within one “work day” as this term is understood in law. Hence, even if the 4-hour work is done in the evening as in the example above, it should not be considered overtime work since the eight-hour period has not yet been exceeded. c. Staggered working time. Staggered working time is a valid scheme which may be resorted to by employers. As a matter of precedence, Memorandum Circular No. 81 was issued by the Office of the President on December 14, 2004 which implemented the Staggered Working Time in the Executive Department in relation to the other branches of government and the private sector in Metro Manila during the Christmas Season from December 15, 2004 to January 6, 2005. According to this issuance, the “Staggered Working Time” is meant to improve the delivery of goods and services. d. Work in different shifts. In establishments where work is in different shifts, work done by the employee beyond his eight-hour shift is considered overtime work which should be compensated accordingly. For example, if there are three (3) eighthour shifts in a “work day,” say, the first shift is from 6:00 a.m. to 2:00 p.m. ; second shift from 2:00 p.m. to 10:00 p.m. ; and the third shift from 10:00 p.m. to 6:00 a.m. of the following day, the employee whose regular eight-hour work is in the first shift (6:00 a.m. to 2:00 p.m. ) , once required to work in the second or third shift, should be given additional compensation for such work done beyond his regular working hours which legally is considered overtime work. e. Reduction of workdays on account of losses. Workdays may be reduced in situations where the reduction in the number of regular working days is resorted to by the employer to prevent serious losses due to causes beyond his control, such as when there is a substantial slump in the demand for his goods or services or when there is lack of raw materials. 1 f. Flexible work schedule under R.A. No. 8972. Under R.A. No. 8972, otherwise known as “The Solo Parents’ Welfare Act of 2000,” solo parents are allowed to work on a flexible schedule, thus:

“Sec. 6. Flexible Work Schedule. – The employer shall provide for a flexible working schedule for solo parents: Provided, That the same shall not affect individual and company productivity: Provided, further, That any employer may request exemption from the above requirements from the DOLE on certain meritorious grounds.” 2 The phrase “flexible work schedule” is defined in the same law as the right granted to a solo parent employee to vary his/her arrival and departure time without affecting the core work hours as defined by the employer.3 g. Work interruptions due to brownouts. The following are the effects of work interruption due to brownouts: 4 1. Brown-outs of short duration but not exceeding twenty (20) minutes shall be treated as worked or compensable hours whether used productively by the employees or not. 2. Brown-outs running for more than twenty (20) minutes may not be treated as hours worked provided any of the following conditions are present: a. The employees can leave their workplace or go elsewhere whether within or without the work premises; or b. The employees can use the time effectively for their own interest. 3. In each case, the employer may extend the working hours of his employees outside the regular schedules to compensate for the loss of productive man-hours without being liable for overtime pay. 4. Industrial enterprises with one or two workshifts may adopt any of the workshifts prescribed for enterprises with three (3) workshifts to prevent serious loss or damage to materials, machineries or equipment that may result in case of power interruptions. 5 5. The days when work was not required and no work could be done because of shutdown due to electrical power interruptions, lack of raw materials and repair of machines, are not deemed hours worked. 6

(a) COMPRESSED WORK WEEK 1. DEFINITION UNDER DEPARTMENT ADVISORY NO. 2, SERIES OF 2009. The Labor Code provides that the normal work hours per day shall be eight (8) hours. Work may be performed beyond eight 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 six (6) days, or a total of forty-eight (48) hours based on the normal workday of eight (8) hours. This is without prejudice to firms whose normal workweek is five (5) days, or a total of forty (40) hours based on the normal workday of eight (8) hours. 7 “Compressed Workweek” or “CWW” refers to a situation where the normal workweek is reduced to less than six (6) days but the total number of work-hours of 48 hours per week remains. The normal workday is increased to more than eight (8) hours but not to exceed twelve (12) hours, without corresponding overtime premium.8 This concept can be adjusted accordingly in cases where the normal workweek of the firm is five (5) days.9 2. CWW, A KIND OF FLEXIBLE WORK ARRANGEMENT. CWW is a kind of flexible work arrangement which is considered as better alternative to the outright termination of the services of the employees or the total closure of the establishment. Anchored on voluntary basis and conditions mutually acceptable to both the employer and the employees, it is recognized as beneficial in terms of reduction of business costs and helps in saving jobs while maintaining competitiveness and productivity in industries.10 “Flexible work arrangements” refer to alternative arrangements or schedules other than the traditional or standard work hours, workdays and workweek. The effectivity and implementation of any of the flexible work arrangements should be temporary in nature.11 3. OTHER FORMS OF FLEXIBLE WORK ARRANGEMENTS. Other than the CWW, the following are flexible work arrangements which may be considered, among others: 1. “Reduction of Workdays” refers to one where the normal workdays per week are reduced but should not last for more than six (6) months.

2. “Rotation of Workers” refers to one where the employees are rotated or alternately provided work within the workweek. 3. “Forced Leave” refers to one where the employees are requires to go on leave for several days or weeks utilizing their leave credits, if there are any. 4. “Broken-time schedule” refers to one where the work schedule is not continuous but the work-hours within the day or week remain. 5. “Flexi-holidays schedule” refers to one where the employees agree to avail of the holidays at some other days provided there is no diminution of existing benefits as a result of such arrangement.12 Under these flexible work arrangements, the employers and the employees are encouraged to explore alternative schemes under any agreement and company policy or practice in order to cushion and mitigate the effect of the loss of income of the employees. 13 4. 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 eight (8) hours is within the threshold limits or tolerable levels of exposure, as set in the Occupational Safety and Health Standards (OSHS) . 3. The employer shall notify the DOLE, through its Regional Office having jurisdiction over the workplace, of the adoption of the CWW scheme. The notice should be made in DOLE CWW Report Form. 14 5. 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 eight (8) hours will not be compensable by overtime premium provided the total number of hours worked per day shall not exceed twelve (12) hours. In any case, any work performed beyond twelve (12) hours a day or forty-eight (48) hours a week shall be subject to overtime pay. 2. Consistent with Article 8515 of the Labor Code, employees under a CWW scheme are entitled to meal periods of not less than sixty (60) minutes. Nothing, however, 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 CBA 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.16 A case in point is Bisig Manggagawa sa Tryco v. NLRC,17 where private respondent Tryco and the petitioners signed separate Memorand[a] of Agreement (MOA) , providing for a compressed workweek schedule to be implemented in the company effective May 20, 1996. The MOA was entered into pursuant to DOLEDepartment Order (D.O. ) No. 21, Series of 1990 enunciating the Guidelines on the Implementation of Compressed Workweek. As provided in the MOA, 8:00 a.m. to 6:12 p.m. , from Monday to Friday, shall be considered as the regular working hours, and no overtime pay shall be due and payable to the employee for work rendered during those hours. The MOA specifically stated that the employee waives the right to claim overtime pay for work rendered after 5:00 p.m. until 6:12 p.m. from Monday to Friday considering that the compressed workweek schedule is adopted in lieu of the regular workweek schedule which also consists of forty-six (46) hours. However, should an employee be permitted or required to work beyond 6:12 p.m. , such employee shall be entitled to overtime pay. Tryco informed the Bureau of Working Conditions (BWC) of the Department of Labor and Employment of the implementation of the said compressed workweek in the company. In upholding the validity of the compressed workweek, it was noted that Department Order No. 21 sanctions the waiver of overtime pay in consideration of the benefits that the employees will derive from the adoption of a compressed workweek scheme, thus:

“The compressed workweek scheme was originally conceived for establishments wishing to save on energy costs, promote greater work efficiency and lower the rate of employee absenteeism, among others. Workers favor the scheme considering that it would mean savings on the increasing cost of transportation fares for at least one (1) day a week; savings on meal and snack expenses; longer weekends, or an additional 52 off-days a year, that can be devoted to rest, leisure, family responsibilities, studies and other personal matters, and that it will spare them for at least another day in a week from certain inconveniences that are the normal incidents of employment, such as commuting to and from the workplace, travel time spent, exposure to dust and motor vehicle fumes, dressing up for work, etc. Thus, under this scheme, the generally observed workweek of six (6) days is shortened to five (5) days but prolonging the working hours from Monday to Friday without the employer being obliged for pay overtime premium compensation for work performed in excess of eight (8) hours on weekdays, in exchange for the benefits above-cited that will accrue to the employees.”

In declaring the compressed workweek arrangement in the 2007 case of Linton Commercial Co. , Inc. v. Hellera,18 as unjustified and illegal and in holding that petitioners are guilty of illegal reduction of work hours, the Supreme Court found specious the petitioners attempt to justify their action by alleging that the company was suffering from financial losses owing to the Asian currency crisis. Petitioners’ claim of financial losses was not supported by evidence. A close examination of petitioners’ financial reports for 1997-1998 shows that while the company suffered a loss of P3,645,422.00 in 1997, it retained a considerable amount of earnings and operating income. Clearly then, while Linton suffered from losses for that year, there remained enough earnings to sufficiently sustain its operations. In business, sustained operations in the black is the ideal but being in the red is a cruel reality. However, a year of financial losses would not warrant the immolation of the welfare of the employees which in this case was done through a reduced workweek that resulted in an unsettling diminution of the periodic pay for a protracted period. Permitting reduction of work and pay at the slightest indication of losses would be contrary to the State’s policy to afford protection to labor and provide full employment. All taken into account, the compressed workweek arrangement was unjustified and illegal. Thus, petitioners committed illegal reduction of work hours.”

3. MEAL BREAK (Article 85, Labor Code) 1. GENERAL RULE ON MEAL PERIOD. As a general rule, every employer is required to give his employees, regardless of sex, not less than one (1) hour (or 60 minutes) time-off for regular meals.19 Being time-off, it is not compensable hours worked. In this case, the employee is free to do anything he wants, except to work. If he is required, however, to work while eating, he should be compensated therefor. 2. SHORTENING OF MEAL TIME TO NOT LESS THAN 20 MINUTES, WHEN COMPENSABLE. In the following cases, a meal period of not less than twenty (20) minutes may be given by the employer provided that such shorter meal period is credited as compensable hours worked of the employee: a. Where the work is non-manual work in nature or does not involve strenuous physical exertion; b. Where the establishment regularly operates for not less than sixteen (16) hours a day; c. In cases of actual or impending emergencies or when there is urgent work to be performed on machineries, equipment or installations to avoid serious losses which the employer would otherwise suffer; and d. Where the work is necessary to prevent serious loss of perishable goods.20 3. SHORTENING OF MEAL TIME TO NOT LESS THAN 20 MINUTES, WHEN NOT COMPENSABLE. The law allows a situation where the employees themselves request for the shortening of meal period to not less than twenty (20) minutes (say, thirty minutes, or from 12:00 to 12:30 p.m. instead of 12:00 to 1:00 p.m. ) for the purpose of allowing them to leave work earlier than the lapse of the eight (8) hours required by law (say, 4:30 p.m. instead of 5:00 p.m. ) . This shortened period, however, shall not be considered compensable working time provided the following conditions are complied with: a. The employees voluntarily agree in writing to a shortened meal period of thirty (30) minutes and are willing to waive the overtime pay for such shortened meal period;

b. There should be no diminution in the benefits of the employees which they receive prior to the effectivity of the shortened meal period; c. The work of the employees does not involve strenuous physical exertion and they are provided with adequate coffee breaks in the morning and afternoon; d. The value of the benefits derived by the employees from the proposed work arrangement is equal to or commensurate with the compensation due them for the shortened meal period as well as the overtime pay for 30 minutes as determined by the employees concerned; e. The overtime pay of the employees will become due and demandable if ever they are permitted or made to work beyond 4:30 p.m. ; and f. The effectivity of the proposed working time arrangement shall be for a temporary duration as determined by the DOLE Secretary.21 4. SHORTENING OF MEAL TIME TO LESS THAN 20 MINUTES, EFFECT. The law does not allow that meal time be shortened to less than twenty (20) minutes. If so reduced, the same shall no longer be considered as meal time but merely as rest period or coffee break and, therefore, becomes compensable working time.22 5. CHANGING FROM 30-MINUTE PAID “ON CALL” LUNCH BREAK TO 1 HOUR MEAL TIME WITHOUT PAY, EFFECT. The case of Sime Darby Pilipinas, Inc. v. NLRC,23 is illustrative of this point. Prior to the present controversy, all company factory workers in Marikina including members of private respondent union worked from 7:45 a.m. to 3:45 p.m. with a 30-minute paid “on call” lunch break. Petitioner, by way of a memorandum, changed the meal time schedule from 30 minutes to one (1) hour without pay. Since private respondent union felt affected adversely by the change in the work schedule and discontinuance of the 30-minute paid “on call” lunch break, it filed on behalf of its members a complaint with the Labor Arbiter for unfair labor practice, discrimination and evasion of liability. In declaring the change in the work schedule as valid, the Supreme Court held: “(The petitioner) rationalizes that while the old work schedule included a 30-minute paid lunch break, the employees could be called upon to do jobs during that period as they were ‘on call. ’ Even if denominated as lunch break, this period could very well be considered as working time because the factory employees were required to work if necessary and were paid accordingly for working. With the new work schedule, the employees are now given a one-hour lunch break without any interruption from their employer. For a full onehour undisturbed lunch break, the employees can freely and effectively use this hour not only for eating but also for their rest and comfort which are conducive to more efficiency and better performance in their work. Since the employees are no longer required to work during this one-hour lunch break, there is no more need for them to be compensated for this period. We agree with the Labor Arbiter that the new work schedule fully complies with the daily work period of eight (8) hours without violating the Labor Code. Besides, the new schedule applies to all employees in the factory similarly situated whether they are union members or not.”

6. MEAL TIME INVOLVING SEVERAL SHIFTS. In a company where work is continuous for several shifts, the mealtime breaks should be counted as working time for purposes of overtime compensation. Consequently, the workers who are required to work in two (2) full successive shifts should be paid for sixteen (16) hours and not fourteen (14) , the two hours for rest or mealtime breaks being included as compensable working time. The idle time that an employee may spend for resting wherein he may leave the work area should not be counted as working time only when the work is not continuous. 24

4. WAITING TIME (Article 84, Labor Code) 1. COMPENSABLE HOURS WORKED. The following shall be considered as compensable hours worked: a. All time during which an employee is required to be on duty or to be at the employer’s premises or to be at a prescribed workplace; and b. All time during which an employee is suffered or permitted to work. 25

2. SOME PRINCIPLES IN DETERMINING HOURS WORKED. The following general principles shall govern in determining whether the time spent by an employee is considered hours worked: a. All hours are hours worked which the employee is required to give to his employer, regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion; b. An employee need not leave the premises of the workplace in order that his rest period shall not be counted, it being enough that he stops working, rests completely and leaves his workplace to go elsewhere, whether within or outside the premises of his workplace; c. If the work performed was necessary or it benefited the employer or the employee could not abandon his work at the end of his normal working hours because he had no replacement, all time spent for such work shall be considered as hours worked if the work was with the knowledge of his employer or immediate supervisor; d. The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either if the imminence of the resumption of work requires the employee’s presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employee’s own interest.26 It bears emphasizing that the employer retains the management prerogative, whenever exigencies of the service so require, to change the working hours of its employees. 27 Moreover, the age-old rule which governs the relationship between labor and capital or management and employee of a “fair day’s wage for a fair day’s labor,” remains the basic factor in determining the employees’ wages and backwages.28 3. WAITING TIME. a. When waiting time is compensable. Waiting time spent by an employee shall be considered as working time if waiting is an integral part of his work or the employee is required or engaged by the employer to wait.29 In Arica v. NLRC,30 it was ruled that the 30-minute assembly time practiced by the employees of the company cannot be considered “waiting time” and should not therefore be compensable. Although it is clear that employers must compensate employees for time actually spent working, questions arise as to whether the minimum wage and overtime provisions also apply to time spent waiting to perform productive work. Under the regulations, whether waiting time is time worked depends on the particular circumstances. Time spent waiting for work is compensable if it is spent “primarily for the benefit of the employer and [its] business. ” Conversely, if the time is spent primarily for the benefit of the employee, the time is not compensable. In determining whether waiting time constitutes hours worked, the amount of control the employer has over the employee during the waiting time, and whether the employee can effectively use that time for his own purposes is material. b. On Duty. Waiting time while on duty is included in compensable time, especially when it is unpredictable, or is of such short duration that the employees cannot use the time effectively for their own purposes. In those instances, the employees are to be compensated whether their work is on or off the employer's premises, even if the employees spend the time engaging in such amusements as playing cards, watching television or reading. Examples in American jurisprudence where employees were found to be engaged in compensable waiting time include: • Assembly line workers who experienced idle time of 45 minutes or less due to delays in delivery and mechanical failures; • A well pumper who resided on the employer's premises and who was required to be on duty at least eight hours per day, seven days per week to pump wells and repair machinery when needed; • Restaurant employees who were required by their employer to report to work at a certain time even though they could not punch in until enough customers were present to make work available; • Truck washers who were idle while waiting for the arrival of the next truck;

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Truck drivers carrying the mail who had periodic layovers lasting two hours or less due to loading or unloading problems; • Oil well casing crews who had to wait for casings after they set up their equipment; • Truck drivers and helpers who were required by their employer to wait on premises for assignments; and • Employees who experienced occasional idle time caused by machinery breakdowns. c. Off Duty Based on U.S. jurisprudence, periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. Whether the time off is truly sufficient to enable employees to effectively use the time for their own purposes is a factual issue dependent upon the circumstances. Circumstances considered by the courts include the duration of the time off and any other facts which may place restrictions on the employees. Examples of cases where courts have found that employers are justified in denying compensation for idle time include: • A telephone dispatcher who only had to answer a small number of telephone calls for non-emergency ambulance care each night and who was allowed to pursue her own personal, social and business activities during the evening hours; • Employees who were required to live on the employer's premises during their off-shift hours, but who were free during their off duty time to sleep, eat, watch television, exercise, play ping pong or cards, read and engage in other personal amusements; and • Truck drivers responsible for picking up and delivering the mail who were free to attend to personal matters and occupy their time as they desired during the waiting time between scheduled runs. 4. IDLE TIME. A close variance of “waiting time” is “idle time” during which an otherwise off-duty employee remains available to be called to work may or may not be compensable, depending upon the situation. As a general rule, the issue of compensability depends on whether the time is spent primarily for the employer’s benefit as opposed to the employee’s. The answer usually turns upon the extent to which employee is able to and does use the time effectively for personal purposes. An evaluation of all the relevant facts become necessary to determine compensability. The following, among others, should be considered: a. The employer requires the employee to remain on the employer’s premises; b. The employer requires the employee to wait at home for calls or messages or confines the employee to a highly-restricted geographical area; c. The employee receives numerous or frequent work assignments during the on-call period; d. The employee must respond within a short timeframe under the circumstances (especially if the employee must travel somewhere to do the work) ; e. Requires the employee to be on-call frequently, never relieves the employee from on-call status, does not permit the employee to exchange calls or call periods with another worker, or does not allow the employee to turn down at least some calls; and f. There is an agreement or understanding covering the arrangement. Some combination of the foregoing factors is present when idle on-call time is found to be compensable work. 5. COMMUTING TIME AND TRAVEL TIME. a. Travel from home to work. An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home-to-work travel which is a normal incident of employment and therefore not considered as hours worked. This is true whether he works at a fixed location or at different jobsites. But while normal travel from home to work is not working time, if an 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 considered working time. b. Travel that is all in the day’s work.

Time spent by an employee in travel as part of his principal activity, such as travel from jobsite to jobsite during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and carry tools, the travel from the designated place to the workplace is part of the day’s work and must be counted as hours worked regardless of contract, custom or practice. If an employee normally finishes his work on the premises at 5:00 p.m. and is sent to another job which he finished at 8:00 p.m. and is required to return to his employer’s premises arriving at 9:00 p.m. , all of the time is working time. However, if the employee goes home instead of returning to his employer’s premises, the travel after 8:00 p.m. is work-to-home (home-to-work) travel and is not hours worked. c. Travel away from home. Travel that keeps the employee away from home overnight is travel away from home. Travel away from home is clearly working time when it cuts across the employee’s workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on non-working days. Thus, if an employee regularly works from 9:00 a.m. to 5:00 p.m. from Monday through Friday, the travel time during these hours is working time. Regular meal period is not counted. As an enforcement policy, the Department of Labor and Employment does not consider as working time the time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus or automobile. Any work which an employee is required to perform while travelling must be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona-fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer.

5. OVERTIME WORK, OVERTIME PAY (Article 87, Labor Code) 1. OVERTIME WORK. a. Some principles on overtime work. 1. Work rendered after normal eight (8) hours of work is called “overtime work.” 2. In computing overtime work, "regular wage" or "basic salary" means "cash" wage only without deduction for facilities provided by the employer. 3. "Premium pay" means the additional compensation required by law for work performed within eight (8) hours on non-working days, such as regular holidays, special holidays and rest days. 4. "Overtime pay" means the additional compensation for work performed beyond eight (8) hours. 5. Illustrations on how overtime is computed: a. For overtime work performed on an ordinary day, the overtime pay is plus 25% of the basic hourly rate . b. For overtime work performed on a rest day or on a special day, the overtime pay is plus 30% of the basic hourly rate which includes 30% additional compensation as provided in Article 93 [a] of the Labor Code. c. For overtime work performed on a rest day which falls on a special day, the overtime pay is plus 30% of the basic hourly rate which includes 50% additional compensation as provided in Article 93 [c] of the Labor Code . d. For overtime work performed on a regular holiday, the overtime pay is plus 30% of the basic hourly rate which includes 100% additional compensation as provided in Article 94 [b] of the Labor Code . e. For overtime work performed on a rest day which falls on a regular holiday, the overtime pay is plus 30% of the basic hourly rate which includes 160% additional compensation. 2. PREMIUM PAY VS. OVERTIME PAY. “Premium pay” refers to the additional compensation required by law for work performed within eight (8) hours on non-working days, such as rest days and regular and special holidays. 31

“Overtime pay” refers to the additional compensation for work performed beyond eight (8) hours a day. Every employee who is entitled to premium pay is likewise entitled to the benefit of overtime pay. 32 3. BUILT-IN OVERTIME PAY. In case the employment contract stipulates that the compensation includes built-in overtime pay and the same is duly approved by the Director of the Bureau of Employment Services (now Bureau of Local Employment) , the non-payment by the employer of any overtime pay for overtime work is justified and valid.33 In PAL Employees Savings and Loan Association, Inc. [PESALA] v. NLRC, 34 where the period of normal working hours per day was increased to twelve (12) hours, it was held that the employer remains liable for whatever deficiency in the amount for overtime work in excess of the first eight (8) hours, after recomputation shows such deficiency. 4. VALIDITY OF CBA PROVISION ON OVERTIME WORK. Generally, the premium pay for work performed on the employee’s rest days or regular and special holidays is included as part of the regular rate of the employee in the computation of overtime pay for any overtime work rendered on said days, especially if the employer pays only the minimum overtime rates prescribed by law. The employees and employer, however, may stipulate in their CBA the payment of overtime rates higher than those provided by law. Such agreement may be considered valid only if the stipulated overtime pay rates will yield to the employees not less than the minimum prescribed by law. 35 5. EMERGENCY OVERTIME WORK (ARTICLE 89, LABOR CODE) . a. General rule. The general rule remains that no employee may be compelled to render overtime work against his will. b. Exceptions when employee may be compelled to render overtime work: 1. When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive; 2. When overtime work is necessary to prevent loss of life or property or in case of imminent danger to public safety due to actual or impending emergency in the locality caused by serious accident, fire, floods, typhoons, earthquake, epidemic or other disasters or calamities; 3. When there is urgent work to be performed on machines, installations or equipment, or in order to avoid serious loss or damage to the employer or some other causes of similar nature; 4. When the work is necessary to prevent loss or damage to perishable goods; 5. When the completion or continuation of work started before the 8 hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer; and 6. When overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon. th

c. May an employee validly refuse to render overtime work under any of the afore-said circumstances? No, an employee cannot validly refuse to render overtime work if any of the afore-mentioned circumstances is present. When an employee refuses to render emergency overtime work under any of the foregoing conditions, he may be dismissed on the ground of insubordination or willful disobedience of the lawful order of the employer. 6. UNDERTIME NOT OFFSET BY OVERTIME (ARTICLE 88, LABOR CODE) . The following rules shall apply: 1. Undertime work on any particular day shall not be offset by overtime on any other day. 2. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required by law such as overtime pay or night shift differential pay. 7. WAIVER OF OVERTIME PAY. The right to claim overtime pay is not subject to a waiver. Such right is governed by law and not merely by the agreement of the parties.36

While rights may be waived, the same must not be contrary to law, public order, public policy, morals or good customs or prejudicial to a third person with a right recognized by law. 37 But if the waiver is done in exchange for and in consideration of certain valuable privileges, among them that of being given tips when doing overtime work, there being no proof that the value of said privileges did not compensate for such work, such waiver may be considered valid. 38

6. NIGHT WORK (R.A. NO. 10151), NIGHT SHIFT DIFFERENTIAL (ARTICLE 86, LABOR CODE) 1. R.A. NO. 10151 [JUNE 21, 2011]. a. Significance of the law. R.A. No. 1015139 has repealed Article 130 [Nightwork Prohibition] and Article 131 [Exceptions] of the Labor Code and accordingly renumbered the same articles. Additionally, it has inserted a new Chapter V of Title III of Book III of the Labor Code entitled “Employment of Night Workers” which addresses the issue on nightwork of all employees, including women workers. Chapter V covers newly renumbered Articles 154 up to 161 of the Labor Code. b. Coverage of the law. The law on nightwork applies not only to women but to all persons, who shall be employed or permitted or suffered to work at night, except those employed in agriculture, stock raising, fishing, maritime transport and inland navigation, during a period of not less than seven (7) consecutive hours, including the interval from midnight to five o'clock in the morning, to be determined by the DOLE Secretary, after consulting the workers’ representatives/labor organizations and employers.40 c. Night worker, meaning. "Night worker" means any employed person whose work covers the period from 10 o'clock in the evening to 6 o'clock the following morning provided that the worker performs no less than seven (7) consecutive hours of work. 41 d. Health assessment. At their request, workers shall have the right to undergo a health assessment without charge and to receive advice on how to reduce or avoid health problems associated with their work: (a) Before taking up an assignment as a night worker; (b) At regular intervals during such an assignment; or (c) If they experience health problems during such an assignment. With the exception of a finding of unfitness for night work, the findings of such assessments shall be confidential and shall not be used to their detriment, subject, however, to applicable company policies. 42 e. Mandatory facilities. Mandatory facilities shall be made available for workers performing night work which include the following: (a) Suitable first-aid and emergency facilities as provided for under Rule 1960 (Occupational Health Services) of the Occupational Safety and Health Standards (OSHS) ; (b) Lactation station in required companies pursuant to R.A. No. 10028 (The Expanded Breastfeeding Promotion Act of 2009) ; (c) Separate toilet facilities for men and women; (d) Facility for eating with potable drinking water; and (e) Facilities for transportation and/or properly ventilated temporary sleeping or resting quarters, separate for male and female workers, shall be provided except where any of the following circumstances is present: i. Where there is an existing company guideline, practice or policy, CBA or any similar agreement between management and workers providing for an equivalent or superior benefit; or ii. Where the start or end of the night work does not fall within 12 midnight to 5 o'clock in the morning; or

iii. Where the workplace is located in an area that is accessible twenty-four (24) hours to public transportation; iv. Where the number of employees does not exceed a specified number as may be provided for by the DOLE Secretary in subsequent issuances.43 f. Transfer due to unfitness of work for health reasons. Night workers who are certified by competent physician, as unfit to render night work, due to health reasons, shall be transferred to a job for which they are fit to work whenever practicable. The transfer of the employee must be to a similar or equivalent position and in good faith. If such transfer is not practicable or the workers are unable to render night work for a continuous period of not less than six (6) months upon the certification of a competent public health authority, these workers shall be granted the same company benefits as other workers who are unable to work due to illness. A night worker certified as temporarily unfit for night work for a period of less than six (6) months shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for health reasons.44 g. Women night workers, alternative measures to night work for pregnant and nursing employees. Employers shall ensure that measures shall be undertaken to provide an alternative to night work for pregnant and nursing employees who would otherwise be called upon to perform such work. Such measures may include the transfer to day work, where it is possible, as well as the provision of social security benefits or an extension of maternity leave. (a) Transfer to day work. - As far as practicable, pregnant or nursing employees shall be assigned to day work, before and after childbirth for a period of at least sixteen (16) weeks which shall be divided between the time before and after childbirth. Medical certificate issued by competent physician (i.e. , Obstetrician/Gynecologist, Pediatrician, etc.) is necessary for the grant of: i. additional periods of assignment to day work during pregnancy or after childbirth other than the period mentioned in the foregoing paragraph, provided that the length of additional period should not be more than four (4) weeks or for a longer period as may be agreed upon by the employer and the worker; ii. extension of maternity leave; and iii. clearance to render night work. (b) Provision of social security benefits. - Social security benefits, such as paid maternity leave shall be provided to women workers in accordance with the provisions of R.A. No. 8282 (Social Security Act of 1997) and other existing company policy or CBA. (c) Extension of maternity leave. - Where transfer to day work is not possible, a woman employee may be allowed to extend, as recommended by a competent physician, her maternity leave without pay or using earned leave credits of the worker, if any.45 h. Non-diminution of maternity leave benefits under existing laws. – The law and its rules shall not be construed to authorize diminution or reduction of the protection and benefits connected with maternity leave under existing law.46 i. Protection against dismissal and loss of benefits attached to employment status, seniority and access to promotion. Where no alternative work can be provided to a woman employee who is not in a position to render night work, she shall be allowed to go on leave or on extended maternity leave, using her earned leave credits. A woman employee shall not be dismissed for reasons of pregnancy, childbirth and childcare responsibilities. She shall not lose the benefits regarding her employment status, seniority, and access to promotion which may attach to her regular night work position. 47 j. Compensation. The compensation for night workers in the form of working time, pay or similar benefits shall recognize the exceptional nature of night work.48

Consequently, such compensation shall include, but not be limited to, working time, pay and benefits under the Labor Code, as amended and under existing laws, such as service incentive leave, rest day, night differential pay, 13 month pay, and other benefits as provided for by law, company policy or CBA. 49 k. Social Services. Appropriate social services shall be provided for night workers and, where necessary, for workers performing night work.50 l. Night Work Schedules. The employer shall at its own initiative, consult the recognized workers' representatives or union in the establishment on the details of the night work schedules and the forms of organization of night work that are best adapted to the establishment and its personnel, as well as on the occupational health measures and social services which are required. In establishments employing night workers, consultation shall take place regularly and appropriate changes of work schedule shall be agreed upon before it is implemented. 51 2. NIGHT SHIFT DIFFERENTIAL. a. How reckoned. Night shift differential is equivalent to 10% of employee's regular wage for each hour of work performed between 10:00 p.m. and 6:00 a.m. of the following day. b. Night shift differential vs. overtime pay. When the work of an employee falls at night time, the receipt of overtime pay shall not preclude the right to receive night differential pay. The reason is the payment of the night differential pay is for the work done during the night; while the payment of the overtime pay is for work in excess of the regular eight (8) working hours. th

c. Computation of Night Shift Differential Pay: 1. Where night shift (10 p.m. to 6 a.m. ) work is regular work. a. On an ordinary day: Plus 10% of the basic hourly rate or a total of 110% of the basic hourly rate. b. On a rest day, special day or regular holiday: Plus 10% of the regular hourly rate on a rest day, special day or regular holiday or a total of 110% of the regular hourly rate. 2. Where night shift (10 p.m. to 6 a.m. ) work is overtime work. a. On an ordinary day: Plus 10% of the overtime hourly rate on an ordinary day or a total of 110% of the overtime hourly rate on an ordinary day. b. On a rest day or special day or regular holiday: Plus 10% of the overtime hourly rate on a rest day or special day or regular holiday. 3. For overtime work in the night shift. Since overtime work is not usually eight (8) hours, the compensation for overtime night shift work is also computed on the basis of the hourly rate. a. On an ordinary day. Plus 10% of 125% of basic hourly rate or a total of 110% of 125% of basic hourly rate. b. On a rest day or special day or regular holiday. Plus 10% of 130% of regular hourly rate on said days or a total of 110% of 130% of the applicable regular hourly rate.

7. PART-TIME WORK 1. PART-TIME WORK. The Labor Code does not define part-time work. There is no universally accepted definition of part-time work or employment. A definition proposed by the International Labor Organization (ILO) 52 describes “part-time work” as “a single, regular or voluntary form of employment with hours of work substantially shorter than those

considered as normal in the establishment. ” A “part-time worker” is an employed person whose normal hours of work are less than those of comparable full-time workers.53 Full-time workers affected by partial unemployment, that is by a collective and temporary reduction in their normal hours of work for economic, technical or structural reasons, are not considered to be part-time workers.54 This definition excludes certain forms of employment which although referred to as part-time work, are in particular, irregular, temporary or intermittent employment, or cases where hours of work have been temporarily reduced for economic, technical or structural reasons. Part-time work may take different forms depending on the agreed hours of work in a day, the days of work in a week or other reference periods. In the Philippines, however, the two most common and acceptable forms are four (4) hours work per day and weekend work or two (2) full days per week. 55 2. SECURITY OF TENURE. The same protection afforded to full-time workers with respect to security of tenure should also be extended to part-time workers. Thus, protection provided under the Labor Code and its implementing rules and regulations should likewise be applied to said type of workers. If for example, a part-time employee becomes regular, he cannot be dismissed summarily without just or authorized cause and without complying with the twin requirements of notice and hearing. Otherwise, he shall be considered illegally dismissed. 56 3. INDICATORS OF REGULAR EMPLOYMENT. A part-time worker is considered a regular employee under any of the following conditions: 1. The terms of his employment show that he is engaged as regular or permanent employee; 2. The terms of his employment indicate that he is employed for an indefinite period; 3. He has been engaged for a probationary period and has continued in his employment even after the expiration of the probationary period; or 4. The employee performs activities which are usually necessary or desirable in the usual business or trade of the employer. On the other hand, where the employment contract is fixed or for a definite period only as contemplated by law, part-time employees are likewise entitled to tenurial rights during the entire period of their fixed employment. In other words, they cannot be separated from work without just or authorized cause. 57 4. PROBATIONARY PERIOD OF PART-TIME EMPLOYEES. Using the legal principles enunciated in Article 281 of the Labor Code on probationary employment vis-àvis Article 13 of the Civil Code on the proper reckoning of periods, a part-time employee shall become regular in status after working for such number of hours or days which equates to or completes a six-month probationary period in the same establishment doing the same job under the employment contract. Once a part-time employee becomes a regular employee, he is entitled to security of tenure under the law and he can only be separated for a just or authorized cause and after due process. 58 5. BEING A PART-TIMER IS NOT RELEVANT TO THE ISSUE OF REGULARIZATION. That an employee worked only on a part-time basis cannot deprive him of his attaining regular employment. Part-time work does not mean that one is not a regular employee. One’s regularity of employment is not determined by the number of hours one works but by the nature and by the length of time one has been in that particular job. The above principle was used as the basis in declaring respondent Benedicto Faburada as a regular employee in the case of Perpetual Help Credit Cooperative, Inc. v. Faburada . 59 Respondent Faburada was a regular part-time Computer programmer/operator in petitioner cooperative. He had worked with the Cooperative since June 1, 1988 up to December 29, 1989. His work schedule was on Tuesdays and Thursdays, from 1:00 p.m. to

5:30 p.m. and every Saturday from 8:00 to 11:30 a.m. and 1:00 to 4:00 p.m. and for at least three (3 ) hours during Sundays. His monthly salary was P1,000.00 - from June to December 1988; P1,350.00 - from January to June 1989; and P1,500.00 from July to December 1989. His duties, among others, were to enter data into the computer, compute interests on savings deposits, effect mortuary deductions and dividends on fixed deposits, maintain the masterlist of the cooperative members, perform various forms for mimeographing, and perform such other duties as may be assigned to him from time to time. The same principle was cited in International Pharmaceuticals, Inc. v. NLRC and Dr. Virginia Camacho Quintia,60 as basis in ruling that private respondent Quintia was a regular employee despite the fact THAT she was teaching full-time at the Cebu Doctors’ College while working part-time with petitioner company. This fact does not negate her regular status since it does not affect the nature of Quintia’s work. Thus, whether one’s employment is regular is not determined by the number of hours one works, but by the nature of the work and by the length of time one has been in that particular job. 6. REGULARIZATION FROM REGULAR PART-TIMERS TO REGULAR FULL-TIMERS. Workers who are hired initially as temporary part-timers may demand that their status be converted not to regular part-timers but to regular full-timers if the circumstances warrant such conversion. In Philippine Airlines, Inc. v. Pascua,61 which involves the issue of regularization of part-time workers to full-time workers, the Supreme Court ruled that although the respondent-employees were initially hired as part-time employees for one (1) year, thereafter the over-all circumstances with respect to the duties assigned to them, number of hours they were permitted to work including overtime, and the extension of their employment beyond two (2) years can only lead to the conclusion that they should be declared full-time regular employees. Evidently, there was a continued and repeated necessity for their services, which puts to naught the contention that respondents, beyond the one-year period, still continued to be temporary part-time employees. Article 280 of the Labor Code provides that any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed, and his employment shall continue while such activity actually exists. 7. COURT CAN ORDER REGULARIZATION OF PART-TIMERS; EMPLOYER CANNOT INVOKE MANAGEMENT PREROGATIVE TO DETERMINE WHEN TO REGULARIZE OR NOT. In the same case of Philippine Airlines, petitioner contended that the NLRC encroached upon its exclusive sphere of managerial decision when it ruled that respondents should be made regular full-time employees instead of regular part-time employees, and the appellate court thereby erred in sustaining the NLRC. The Supreme Court, however, declared that this contention does not quite ring true, much less persuade it. It must be borne in mind that the exercise of management prerogative is not absolute. While it may be conceded that management is in the best position to know its operational needs, the exercise of management prerogative cannot be utilized to circumvent the law and public policy on labor and social justice. That prerogative accorded management could not defeat the very purpose for which our labor laws exist: to balance the conflicting interests of labor and management, not to tilt the scale in favor of one over the other, but to guarantee that labor and management stand on equal footing when bargaining in good faith with each other. By its very nature, encompassing as it could be, management prerogative must be exercised always with the principle of fair play at heart and justice in mind. Hence, having been borne out by the record and the evidence presented that respondent-employees’ status deserves to be converted from part-time to regular full-time, the NLRC’s findings were affirmed by the High Court. Thus, not without sufficient and substantial reasons, the claim of management prerogative by petitioner ought to be struck down for being contrary to law and policy, fair play and good faith. 8. RIGHT OF PART-TIME WORKERS TO SERVICE INCENTIVE LEAVE. In an Advisory Opinion issued by the Bureau of Working Conditions of the Department of Labor and Employment, it was pronounced that part-time workers are entitled to the full benefit of the yearly five (5) days service incentive leave with pay. The reason is that the provision of Article 95 of the Labor Code and its implementing rules, speak of the number of months in a year for entitlement to said benefit. Resultantly, part-time employees are also entitled to the full service incentive leave benefit and not on a pro-rata basis.62 In the case of Cebu Institute of Technology v. Ople,63 the school contends that the teachers it hired on contractual basis are not entitled to service incentive leave since the nature of their work is similar to “those who are engaged on task or contract basis” under the Rules to Implement the Labor Code.64 The High Court, in debunking

this claim, ruled that such quoted phrase should be related to the term “field personnel” following the rule of ejusdem generis that general and unlimited terms are restrained and limited by the particular terms that they follow. Clearly, the teachers cannot be deemed doing field 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.65 9. RULES ON PART-TIME TEACHERS. a. Part-time teachers cannot acquire permanent tenure. As held in University of Santo Tomas v. NLRC, 66 and Saint Mary’s University v. CA,67 a part-time member of the faculty cannot acquire permanent employment status under the Manual of Regulations for Private Schools, in relation to the Labor Code. Only when one has served as a full-time teacher can he acquire permanent or regular status.68 In said University of Sto. Tomas case, it was ruled that for a private school teacher to acquire permanent status in employment, the following requisites must concur: (1) the teacher is a full-time teacher; (2) the teacher must have rendered three (3) consecutive years of service; and (3) such service must have been satisfactory.69 b. Part-time employment cannot be credited to acquire permanent tenure. The petitioner in Lacuesta v. Ateneo de Manila University,70 was a part-time lecturer before she was appointed as a full-time instructor on probation. As a part-time lecturer, her employment as such had ended when her contract expired. Thus, the three (3) semesters she served as part-time lecturer could not be credited to her in computing the number of years she has served to qualify her for permanent status. Petitioner posits that after completing the three-year probation with an above-average performance, she already acquired permanent status. It was held, however, that completing the probation period does not automatically qualify her to become a permanent employee of the university. Petitioner could only qualify to become a permanent employee upon fulfilling the reasonable standards for permanent employment as faculty member. Consistent with academic freedom and constitutional autonomy, an institution of higher learning has the prerogative to provide standards for its teachers and determine whether these standards have been met. At the end of the probationary period, the decision to rehire an employee on probation belongs to the university alone as the employer. 71 c. Part-time teachers enjoy security of tenure only during the effectivity of the part-time employment contract. Part-time teachers enjoy security of tenure during the effectivity of the part-time employment. The school could not lawfully terminate a part-timer before the end of the agreed period without just cause. But once the period, semester, or term ends, there is no obligation on the part of the school to renew the contract of employment for the next period, semester, or term.72

8. CONTRACT FOR PIECE WORK (SEE CIVIL CODE) 1. SYLLABUS REQUIREMENT. The syllabus specifically refers to the provisions of the Civil Code on Contract for a Piece Work. The Civil Code has a complete Section 3, Chapter 3 (Work and Labor) , Title VIII (LEASE) devoted to “Contract for a Piece of Work” covering Articles 1713 to 1731. 2. CONTRACT FOR PIECE WORK UNDER THE CIVIL CODE. a. Nature. By the contract for a piece of work, the contractor binds himself to execute a piece of work for the employer, in consideration of a certain price or compensation. The contractor may either employ only his labor or skill, or also furnish the material.73 b. Pertinent provisions: The following are the relevant Civil Code provisions:

“Art. 1714. If the contractor agrees to produce the work from material furnished by him, he shall deliver the thing produced to the employer and transfer dominion over the thing. This contract shall be governed by the following articles as well as by the pertinent provisions on warranty of title and against hidden defects and the payment of price in a contract of sale. “Art. 1715. The contractor shall execute the work in such a manner that it has the qualities agreed upon and has no defects which destroy or lessen its value or fitness for its ordinary or stipulated use. Should the work be not of such quality, the employer may require that the contractor remove the defect or execute another work. If the contractor fails or refuses to comply with this obligation, the employer may have the defect removed or another work executed, at the contractor's cost. “Art. 1716. An agreement waiving or limiting the contractor's liability for any defect in the work is void if the contractor acted fraudulently. “Art. 1717. If the contractor bound himself to furnish the material, he shall suffer the loss if the work should be destroyed before its delivery, save when there has been delay in receiving it. “Art. 1718. The contractor who has undertaken to put only his work or skill, cannot claim any compensation if the work should be destroyed before its delivery, unless there has been delay in receiving it, or if the destruction was caused by the poor quality of the material, provided this fact was communicated in due time to the owner. If the material is lost through a fortuitous event, the contract is extinguished. “Art. 1719. Acceptance of the work by the employer relieves the contractor of liability for any defect in the work, unless: (1) The defect is hidden and the employer is not, by his special knowledge, expected to recognize the same; or (2) The employer expressly reserves his rights against the contractor by reason of the defect. “Art. 1720. The price or compensation shall be paid at the time and place of delivery of the work, unless there is a stipulation to the contrary. If the work is to be delivered partially, the price or compensation for each part having been fixed, the sum shall be paid at the time and place of delivery, in the absence if stipulation. “Art. 1721. If, in the execution of the work, an act of the employer is required, and he incurs in delay or fails to perform the act, the contractor is entitled to a reasonable compensation. “The amount of the compensation is computed, on the one hand, by the duration of the delay and the amount of the compensation stipulated, and on the other hand, by what the contractor has saved in expenses by reason of the delay or is able to earn by a different employment of his time and industry. “Art. 1722. If the work cannot be completed on account of a defect in the material furnished by the employer, or because of orders from the employer, without any fault on the part of the contractor, the latter has a right to an equitable part of the compensation proportionally to the work done, and reimbursement for proper expenses made. “Art. 1723. The engineer or architect who drew up the plans and specifications for a building is liable for damages if within fifteen years from the completion of the structure, the same should collapse by reason of a defect in those plans and specifications, or due to the defects in the ground. The contractor is likewise responsible for the damages if the edifice falls, within the same period, on account of defects in the construction or the use of materials of inferior quality furnished by him, or due to any violation of the terms of the contract. If the engineer or architect supervises the construction, he shall be solidarily liable with the contractor. “Acceptance of the building, after completion, does not imply waiver of any of the cause of action by reason of any defect mentioned in the preceding paragraph. “The action must be brought within ten years following the collapse of the building. “Art. 1724. The contractor who undertakes to build a structure or any other work for a stipulated price, in conformity with plans and specifications agreed upon with the land-owner, can neither withdraw from the contract nor demand an increase in the price on account of the higher cost of labor or materials, save when there has been a change in the plans and specifications, provided: (1) Such change has been authorized by the proprietor in writing; and (2) The additional price to be paid to the contractor has been determined in writing by both parties.

“Art. 1725. The owner may withdraw at will from the construction of the work, although it may have been commenced, indemnifying the contractor for all the latter's expenses, work, and the usefulness which the owner may obtain therefrom, and damages. “Art. 1726. When a piece of work has been entrusted to a person by reason of his personal qualifications, the contract is rescinded upon his death. “In this case the proprietor shall pay the heirs of the contractor in proportion to the price agreed upon, the value of the part of the work done, and of the materials prepared, provided the latter yield him some benefit. “The same rule shall apply if the contractor cannot finish the work due to circumstances beyond his control. “Art. 1727. The contractor is responsible for the work done by persons employed by him. “Art. 1728. The contractor is liable for all the claims of laborers and others employed by him, and of third persons for death or physical injuries during the construction. “Art. 1729. Those who put their labor upon or furnish materials for a piece of work undertaken by the contractor have an action against the owner up to the amount owing from the latter to the contractor at the time the claim is made. However, the following shall not prejudice the laborers, employees and furnishers of materials: (1) Payments made by the owner to the contractor before they are due; (2) Renunciation by the contractor of any amount due him from the owner. “This article is subject to the provisions of special laws. “Art. 1730. If it is agreed that the work shall be accomplished to the satisfaction of the proprietor, it is understood that in case of disagreement the question shall be subject to expert judgment. “If the work is subject to the approval of a third person, his decision shall be final, except in case of fraud or manifest error. “Art. 1731. He who has executed work upon a movable has a right to retain it by way of pledge until he is paid.”

In addition to the foregoing, there is this relevant Civil Code 74 provision found in the law on Sales: “Art. 1467. A contract for the delivery at a certain price of an article which the vendor in the ordinary course of his business manufactures or procures for the general market, whether the same is on hand at the time or not, is a contract of sale, but if the goods are to be manufactured specially for the customer and upon his special order, and not for the general market, it is a contract for a piece of work.”

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Endnotes:

1

Explanatory Bulletin on the Effect of Reduction of Workdays on Wages/Living Allowances issued by the DOLE on July 23, 1985.

2

Section 6, R.A. No. 8972.

3

See Section 3[e] thereof.

4

Policy Instructions No. 36 dated May 22, 1978 was issued by the Undersecretary of Labor and Employment to clarify the effects of power interruptions or brown-outs on productive man-hours.

5

Policy Instructions No. 36, May 22, 1978.

6

Durabilt Recapping Plant Company v. NLRC, G.R. No. L-76746, July 27, 1987, 152 SCRA 328.

7

Department Advisory No. 2, Series of 2004, issued by the DOLE Secretary on December 2, 2004 implementing compressed workweek (CWW) schemes.

8

Department Advisory No. 2, Series of 2009, issued on January 29, 2009 by DOLE Secretary Marianito D. Roque enunciating the Guidelines on the Adoption of Flexible Work Arrangements.

9

Department Advisory No. 2, Series of 2004, supra.

10

Department Advisory No. 2, Series of 2009, supra.

11

Id.

12

Id.

13

Id.

14

Department Advisory No. 2, Series of 2004, supra.

15

It provides: “Article 85. Meal Periods. – Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals.”

16

Department Advisory No. 2, Series of 2004, supra.

17

G.R. No. 151309, Oct. 15, 2008.

18

G.R. No. 163147, Oct. 10, 2007.

19

Article 85, Labor Code; Section 7, Rule I, Book III, Rules to Implement the Labor Code.

20

Section 7, Rule I, Book III, Ibid.

21

Letter-Opinion dated Nov. 27, 1989 of Secretary Franklin Drilon to Kodak Philippines.

22

Id.

23

G.R. No. 119205, April 15, 1998, 289 SCRA 86.

24

National Development Company v. Court of Industrial Relations, G.R. No. L-15422, Nov. 30, 1962.

25

Article 84, Labor Code; Section 3, Rule I, Book III, Rules to Implement the Labor Code; Rada v. NLRC, G.R. No. 96078, Jan. 9, 1992, 205 SCRA 69.

26

Section 4, Rule I, Book III, Rules to Implement the Labor Code.

27

Union Carbide Labor Union v. Union Carbide Philippines, Inc. , 215 SCRA 554 [1992].

28

Durabilt Recapping Plant Company v. NLRC, G.R. No. L-76746, July 27, 1987, 152 SCRA 328.

29

Section 5 [a], Rule I, Book III, Ibid.

30

G.R. No. 78210, February 28, 1989, 170 SCRA 776.

31

No. III, DOLE Handbook on Workers Statutory Monetary Benefits.

32

No. IV, Ibid.

33

Engineering Equipment, Inc. v. Minister of Labor, G.R. No. L-64967, Sept. 23, 1985

34

G.R. No. 105963, August 22, 1996.

35

No. IV [D], DOLE Handbook on Workers Statutory Monetary Benefits.

36

Mercader v. Manila Polo Club, G.R. No. L-8373, Sept. 28, 1956; Cruz v. Yee Sing, G.R. No. L-12046, Oct. 1959; Manila Terminal Co. , Inc. v. CIR, G.R. No. L-9265, April 29, 1957, 48 O. G. 7, p. 2725, 91 Phil. 625.

37

Article 6, Civil Code; Pampanga Sugar Development Co. , Inc. v. Court of Industrial Relations, G.R. No. L-39387, June 29, 1982.

38

Meralco Workers Union v. Manila Electric Co. , G.R. No. L-11876, May 29, 1959.

39

Entitled “An Act Allowing the Employment of Night Workers, Thereby Repealing Articles 130 and 131 of P.D. No. 442, As Amended, Otherwise Known as the Labor Code of the Philippines” was approved on June 21, 2011.

40

Article 154, Labor Code, as amended by Section 4, R.A. No. 10151.

41

See Section 2, Department Order No. 119- 12, Series of 2012 (Rules Implementing R.A. No. 10151) . It bears noting that the definition of “night worker” under the law is as follows: “Night worker” means any employed person whose work requires performance of a substantial number of hours of night work which exceeds a specified limit. This limit shall be fixed by the Secretary of Labor after consulting the workers' representatives/labor organizations and employers. " (Article 154, Labor Code, as amended by Section 4, R.A. No. 10151) .

42

Section 3, Department Order No. 119- 12, Series of 2012 (Rules Implementing R.A. No. 10151) ; Article 155, Labor Code, as amended by Section 4, R.A. No. 10151.

43

Section 4, Id. Article 156, Id.

44

Section 5, Id. Article 157, Id.

45

Section 6, Id. Article 158, Id.

46

Section 7, Id. Article 158, Id.

47

Section 8, Id. Article 158, Id.

48

Article 159, Id.

49

Section 9, Id.

50

Article 160, Id.

51

Section 10, Id. Article 161, Id.

52

C175 - Part-Time Work Convention, 1994 (No. 175) Convention Concerning Part-Time Work (Entry into force: 28 Feb 1998) . A copy of this document may be found at the website of the ILO at http://www.ilo.org/dyn/normlex/en/f?p= NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C175. Last accessed: May 15, 2014.

53

Article 1 (a) , Id. The term “comparable full-time worker” refers to a full-time worker who: (i) has the same type of employment relationship; (ii) is engaged in the same or a similar type of work or occupation; and (iii) is employed in the same establishment or, when there is no comparable full-time worker in that establishment, in the same enterprise or, when there is no comparable full-time worker in that enterprise, in the same branch of activity, as the part-time worker concerned. (Article 1 (c) , Id. )

54

Article 1 (d) , Id.

55

Ibid. .

56

Ibid. .

57

Ibid. .

58

Explanatory Bulletin on Part-Time Employment dated Jan. 02, 1996 issued by Acting DOLE Secretary Jose S. Brillantes.

59

G.R. No. 121948, Oct. 8, 2001.

60

G.R. No. 106331, March 9, 1998.

61

G.R. No. 143258, Aug. 15, 2003.

62

Advisory Opinion of the Bureau of Working Conditions, Department of Labor and Employment, on Conditions of Employment of Part-time Workers.

63

G.R. No. L- 58870, Dec. 18, 1987, 156 SCRA 629.

64

See Section 1 [d], Rule V [Service Incentive Leave], Book III thereof.

65

See also Paragraph 3, Article 82, Title I, Book III, Labor Code.

66

G.R. No. 85519, Feb. 15, 1990.

67

G.R. No. 157788, March 8, 2005.

68

See also Spouses Lim v. Legazpi Hope Christian School, G.R. No. 172818, March 31, 2009.

69

See also La Consolacion College v. National Labor Relations Commission, G.R. No. 127241, Sept. 28, 2001, 366 SCRA 226, 230.

70

G.R. No. 152777, Dec. 9, 2005.

71

Escorpizo v. University of Baguio, G.R. No. 121962, April 10, 1999, 306 SCRA 497, 507; Cagayan Capitol College v. NLRC, G.R. Nos. 90010-11, Sept. 14, 1990, 189 SCRA 658, 665.

72

Saint Mary’s University v. CA, G.R. No. 157788, March 8, 2005, 453 SCRA 61, 65.

73

Article 1713, Civil Code.

74

Under Title VI (SALES) , Chapter 1 (Nature and Form of the Contract) , Civil Code.