Exceptions to the coverage of holiday pay law
The following are exempted from holiday pay:
- Government employee whether employed by National government offices or any pf its political subdivisions, including those employees in the government owned and controlled corporations with original charters;
- Retail establishments employing less than 10 employees;
- Househelpers and otehr persons in the personal service;
- Managerial employees;
- Officers or member of managerial staff
- Field workers
Facilities and Supplements
Facilities includes articles or services for the benefit of the employee or his family but shall NOT include tools of trade or articles or service primarily for the benefit of the employer or necessary to toe conduct of the Employer’s business
- it is WAGE DEDUCTIBLE
Supplements constitute extra renumeration or special privileges or benefits.
Not wage deductible
– what is essentail here is the PURPOSE
Requisites in making DEDUCTIONS
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When does the RULE AGAINST DIMINUTION OF SUPPLEMENTS/BENEFITS apply?
- Grant of the benefit is founded on a policy or has ripened into a practice over a long period;
- Practice is consistent and deliberate;
- Practice is not due to error in the construction or application of a doubtful or difficult question of law
- Diminution or discontinuance is done unilaterally by the employer
When will it ripen to COMPANY PRACTICE
To ripen into company practice the giving of the increase must not be by reason of strict or contractual obligation. It must be based on liberality on the part of the employer
Contracting or subcontracting
relationship of the PRINCIPAL and the contractor the law applicable are the Civil Code and pertinent commercial laws.
- No substantial capital which relates to the job, work, or service - directly related to the main business of the principal
- Contractor does not exercise the right to control over the performance of work of the contractual employee
Cooperative engaged in Labor Only Contracting
Cooperatives engaged in labor only contracting must register with the Department of Labor and Employment as a LABOR CONTRACTOR
- Failure to register will give rise to the presumtion that it is labor only contracting
Exceptions to the Non-Diminution Rule
- Correction of error
- Negotiated Benefits (CBA)
- Wage order compliance
- Benefits on reimbursement basis
- Reclassification of position
- Contingent benefits or conditional bonus
7 Productivity incentives
Non Diminution of Benefits
Supreme Court did not lay down any rule requiring specific number of years. Voluntary employer practice cannot be unilaterally withdrawn by the Employer without violating the Rule Against Diminution of Benefits
Who are workers paid by results
Workers whose pay is calculated not on the basis of time spent on the job but of the quantity and quality or the kind of work they turn out.
Workers paid by results: Time and Motion Study
- Upon the petition of an interested party or initiative of the DOLE shall conduct a study whether employees are being paid in accordance with minimum wage
- The basis for the establishment of rates per piece, output or contract work shall be the performance of an ordinary worker
- An ordinary worker of minimum skill or ability is the average worker of the lowest producing group representing 50% of the total number of employees engaged in similar enterprise in a particular establishment
Excluding: Learners, apprenticees and handicapped workers
- Employees shall be entitleed to the difference between the amount which they are entitled to receive under such prescribed standards/ rates and that are actually paid
Piece-rate workers: Service Incentive Leave and Overtime pay
a) Unsupervised - no OT/SIL
b) Supervised - entitled to OT/SIL
The yearly Commutation/ cash conversion of the SIL should be based on their AVERAGE DAILY EARNINGS earned during the year by the actual number of working days or the statutory minimum rate, whichever is higher
- excluded in the SIL are the: COLA, OT, premium pay, holiday pay, NSDand company fringe benefits
Not entitled to Holiday Pay, Night Differential, SIL 13th Month
- Field personnel
- Unsupervised employees
- Engaged on tast/ contract basis
- Purely commission basis
- Paid a fixed amount for perfroming work irrespective of the time consumed
Not Entitled to OT
- Paid on piece work
- Paid on takay
- Paid on pakyaw
- Paid on task basis if their output rates are in accordance with the standards under Sec 8 Rule 7 Book 4
Benefits payable to piece-rate workers
- Statutory minimum wage xxxxx
Not entitled to pay 13th month pay
- Distressed Employer
- Government
- employees paid on commission basis
- personal services/ household
> employer must prove that he is exempted apply before the regional office of DOLE for the exemption
Payment through the heirs of the worker
- Claimants shall execute an affidavit attesting their relationship to the deceased and the fact that they are his heirs, to the exclusion of all others (Affidavot of Next of Kin)
- In case of a minor, the affidavit shall be executed on his behalf by a natural guardian or next of kin
- Affidavit shall be presented to the employer who shall make payment through the SECRETARY OF LABOR
- Teh representative shall act as a referrr in dividing the amount among the heirs
- Payment of wages under this Act shall absolve Employer of any further liability with respect to the amount paid
Job Contracting or Subcontracting
an arrangement whereby a principal agrees to put out or farm out with a contractor or subcontractor the performance or completing of a specific job, work or service within a definite or predetermined period, regarless of whether such job, work or service is to be performed or completed within or outside the premises of the principal
Relationship in Contracting/subcontracting
Relationship in a contracting or subcontracting arrangement where there is a contract for a specific job, work or service between the principal and the contractor, and a contract of employment between the conractor and workers
Principal - who decides to farm out a job, work or service to a contractor
Contractor - capacity to independently undertake performance of the job, work or service
Contractual workers - engaged by contractors to accomplish the job, work or service
Labor only contracting between the Principal and the Contractor employees
if proven that it is labor only ontracting the contractual employees will be deemed direct employees of the principal.
The principal in this case will no longer be solidarily liable with the contractor.
Elements of Independent COntractor Job Contracting
- Sub/contractor carries on a distinct and independent business and undertakes to perform the job on his own account and under his own responsibility, according to its own manner and method and free from the control & direction of the principal in all matters connected with the performance of the work except to the results thereof
- Contractor/ Subcontractor has substantial capital
- The agreement between the principal and sub/contractor assures the contractual employee entitlement to all labor and health standards, free exercise of the Right to self organization, security of tenure and social welfare benefits
- Must be properly registered as such.
The absence of registration only gives rise to the presumption that the contractor is engaged in labor only contracting a presumption that can be refuted
Labor-only contracting
An arrangement where the sub/contractor merely recruits, supplies or places workers to perform a job, work or service for a principal, and ANY of the following elements is present
Confirming element:
a) Lack of substantial capital/ investment and performance of activities diretly related to the principals business
b) Contractor does not exercise right of control over the performance of contractual employees
Essential element:
c) The arrangement is merely to recruit, supply or place workers to perform a job, work or service
Contracting with Cabo
Persons or labor group which in the guise of a labor organization, supplies workers to an employer with or without any monetary or other consideration whether in the capacity of an agent of the employer or as an ostensible independent contractor
Requirements for deducting facilities
- proof must be shown that such facilities are customarily furnished by the trade
- Provision of deductible facility voluntarily accepted in writing by the employee
- must be charged at fair and reasonable value
