SOME NOTES ON

HOURS OF WORK
(Updated: October 2019)

I. Coverage

Labor Code

Art. 82. Coverage. The provisions of this Title shall apply to employees in all
establishments and undertakings whether for profit or not, but not to government
employees, 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 as
determined by the Secretary of Labor in appropriate regulations.

Implementing Regulations: Definitions

"Managerial employees"- are those whose

(1)primary duty consists of the management of the establishment in which they are
employed or of a department or sub-division thereof.

(2)customarilyand regularly direct the work of two or more employees

(3)have the authority to hire or fire employees of lower rank; or their suggestions and
recommendations as to hiring and firing and as to the promotion or any other change of
status of other employees, are given particula rweight.

Officers or members of am anagerial staff-if they perform the following duties

and responsibilities:

(1)The primary duty consists of the performance of work directly related to

management policies of their employer;

(2)Customarily and regularly exercise discretion and independent judgment;and

(3)

(i)Regularly and directly assist a proprietor or a managerial employee whose

primary duty consists of the management of the establishment in which he is employed
or subdivision thereof;or,

(ii )execute under general supervision work along specialized or technical lines
requiring special training, experience, or knowledge; or

(iii)execute,undergeneral supervision, special assignments and tasks;and

4) Who do not devote more than 20 percent of their hours worked in a work week to
activities which are not directly and closely related to the performance of the work
described in paragraphs (1),(2)and(3) above.

Comments:

 Art. 82 cannnot be interpreted to mean that the excluded employees could be worked to
death since they are not covered by the maximum working hours and days. It does not
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 also mean that exclded emplyees ( eg. mangerail emplyees) cannot be compelled to work
beyond 8 hours. The law should be interpreted in a reasonable manner. Indeed, Book II
Rule II Section 1 of the RILC (Weekly rest periods) speaks of "all employees". Instead, the
statutory provision means that when the excluded employees work beyond the normal
work day of 8 hours or work week of 6 days, they are not entitled to premium pay.

 Note that Art. 94 (Holidays, SIL, & Service Charge) adds another class of excluded
employees: those working in retail and service establishments regulary employing less
than 10 workers."

 The RILC (Book II, Rule II, Sec. 1) also excludes from the coverage of night shift differential
"those working in retail and service establishments regulary employing less than 5
workers". Is this within the DOLE Secretary's authority or did he exceed his authority by
going beyond what the Labor Code prescribes??

 The test for "field personnel" is not whether they work outside the premises of the
company but whether their working hours could be determined with reasonable certainty.
With the advent of ever sophisticated tracking technology, this test could be challenged
with increasing frequency. Thus, bus drivers and conductors ( who follow fixed routes
prescribed by the LTRFB) have been held not to be "field personnel" since their working
hours from and to the bus terminals are monitored by inspectors who board the buses in
random manner along the bus routes.

 "Workers who are paid by results " are excluded only if their work hours and
performance are unsupervised by the employer. If they worked within company
premises and their work is monitored by the employer, they will be covered by the
provisions on hours of work ( Labor Congress of the Phlippines vs NLRC, GR No. 123938,
21 May 1998).

 Employees of government owned and controlled corporations are excluded only if the
GOCC has no original charter; otherwise, if the GOCC is incorporated under the
Corporation Code (like private corporations), its employees are covered by the Labor
Code.

 "Managerial employees' include both "managers" and "members of managerial

staff"(basically supervisors). Their tasks involve the "management" or the running and
control of the enterprise including thebusiness aspect ( financials, marketing, pricing, etc)
and personnel aspect ( hiring, firing, transfer and employees; fixing of salaries, benefits ,
and work schedules, etc.).

 Some companies,to address the concerns of supervisory employees who render extra
hours, grant fixed allowance for this purpose ( meaning, the amount is pre-determined
and is not tied up to actual rendition of overtime work or to the actual number of excess
hours of work).

II. Normal Hours of Work

Labor Code

Art. 83. Normal hours of work. The normal hours of work of any employee shall not
exceed eight (8) hours a day.

Comments:

 The law refers to a 24-hour cycle. Work could start and end any hour within the same 24-
hour ccyle
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  What the law sets is a maximum.The law does not set a minimum. Hence,a one-hour
daily work schedule is technically allowable.

 The DOLE recognizes part-time work( i.e., less than 8 hours/day), with the consequence
that the minimum wage will be set pro rata.

 In case of company financial distress, may a employer reduce the work hours of its
employees (and consequently their salaries) so that it avoids retrenchment of a part of its
work force? There is no decided case yet on this scenario

 The law does not impose a straight 8 hours of work. "Broken time" ( e.g., 2 blocks of 4-
hour shifts separated by a non-work hours period) is technically allowed but rarely
practiced.

 Art. 83 fixes the normal work hours of health personnel (including resident physicians,
nurses, nutritionists, dieticians, pharmacists, social workers, laboratory technicians,
paramedical technicians, psychologists, midwives, attendants) at eight (8) hoyrs a day for
five (5) days only. Work on the 6th day would merit 30% premium. The statutory provision
only covers "health personnel in: a) cities and municipalities with a population of at least
1 Million; or, b) in hospitals and clinics with a bed capcity of at least 100.

Art. 84. Hours worked. 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

Implementing Rules:

SECTION 4.Principles in determining hours worked. — The following generalprinciples

shall govern in determining whether the time spent by an employeeis considered hours
worked for purposes of this Rule:

(a) All hours are hours worked which the employee is required to give hisemployer,
regardless of whether or not such hours are spent in productive laboror involve
physical or mental exertion.
(b) An employee need not leave the premises of the work place in order that hisrest
period shall not be counted, it being enough that he stops working, mayrest completely
and may leave his work place, to go elsewhere, whether withinor outside the premises
of his work place.
(c) If the work performed was necessary, or it benefited the employer, or theemployee
could not abandon his work at the end of his normal working hoursbecause he had no
replacement, all time spent for such work shall beconsidered as hours worked, if the
work was with the knowledge of hisemployer or immediate supervisor.
(d) The time during which an employee is inactive by reason of interruptions inhis work
beyond his control shall be considered working time either if theimminence of the
resumption of work requires the employee's presence at theplace of work or if the
interval is too brief to be utilized effectively and gainfullyin the employee's own interest.

SECTION 5.Waiting time.— (a) Waiting time spent by an employee shall beconsidered
as working time if waiting is an integral part of his work or theemployee is required or
engaged by the employer to wait.

(b) An employee who is required to remain on call in the employer's premisesor so close
thereto that he cannot use the time effectively and gainfully for hisown purpose shall be
considered as working while on call. An employee who isnot required to leave word at
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 his home or with company officials where he maybe reached is not working while on
call.

SECTION 6.Lectures, meetings, training programs. — Attendance at lectures,meetings,

training programs, and other similar activities shall not be countedas working time if all
of the following conditions are met:

(a) Attendance is outside of the employee's regular working hours;

(b) Attendance is in fact voluntary; and
(c) The employee does not perform any productive work during such attendance

Comments:

 Note that under the law and the regulations an employee need not be doing any
productive activity to be considered at work. He could even be resting.

 What constitutes "hours worked" could be subject to company policy or agreement,

usually for purposes of compensability. Thus, company policy may prescribe that any
overtime work to be compensable must be done with prior written consent of the direct
supervisor.

 Team building activities, company excursions and outings , and Christmas parties will be
governed by the Implementing Rules (see above)

 "Hours worked" is important not only for purpsose of compensability but also on
employee liability for disciplinary causes. If an employee is not considered at work (and
assuming the conduct is not done within company premises) , he will not be subject to
disciplinary sanction as the imputed misconduct would lack work connection.

 There have been legal issues on compensability of "assembly time" or similar pre-work
activities like flag ceremony and morning calisthenics. The guidepost should be whether
these activitiess are mandatory and non-compliance is subject to disciplinarysanction. If
atttendanceis required and unjustified absence is considered an offense, then the activity
should be deemed "hours worked".

Labor Code

Art. 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.

Implementing Rules:

Section 7.Meal and Rest Periods.

xxx

Rest periods or coffee breaks running from five (5) to twenty (20) minutes shallbe considered as
compensable working time.

Comment:

 The situation contemplates an 8-hour work schedule. For part-time work, it is opined that
the rule on pro rata would similary apply.

 The law does not prescribe the time or the interval of time (e.g. , after 4 hours of work )
for the meal period. This aspect would come within management prerogatives.
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  Albeit it is customary that all employees on the same shift would have the same meal
period schedule, the law does not prohibit employers from setting different schedules for
different groups of employees so that business operations do not come to a halt.

 The law does not prohibit the employee from leaving the work premises during meal
period. Such restriction, including being "on call" for emergency work that would not
allow the employee to make full use of the meal period, would make the same
compensable.

 In case of overtime, should a meal period ( or at least "rest period or cofeee breaks") be
mandatory? There is no decided case on this situation.

Art. 86. Night shift differential. Every employee shall be paid a night shift
differential of not less than ten percent (10%) of his regular wage for each hour of work
performed between ten o’clock in the evening and six o’clock in the morning.

Comment:

 The RILC (Book II, Rule II, Sec. 1) also excludes from the coverage of night shift differential
"those working in retail and service establishments regulary employing less than 5
workers". Is this addition by the Secretary of the DOLE to the list provided by the Labor
Codelegal?

 When an employee alleges that he works for a particular schedule within the night shift
period and that he is not paid night shift differential , the employer is obliged to submit
the relevant time and payroll records or else the emplyee's claism will be given merit
(National Semi Conductor Distributionvs NLRC, GR No. 123520, 26 June 1998).

Art. 87. Overtime work. Work may be performed beyond eight (8) hours a day
provided that the employee is paid for the overtime work, an additional compensation
equivalent to his regular wage plus at least twenty-five percent (25%) thereof. Work
performed beyond eight hours on a holiday or rest day shall be paid an additional
compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at
least thirty percent (30%) thereof.

Comments:

 A company and a union may agree for automatic overtime work schedule , through CBA or
by company practice, non-compliance of which may constitute violation of the CBA
(Interphil Lab Employees Union vs InterphilLab,GR No. 142824, 19 Dec 2001)

 An "all-inclusive salary package", in which payment for 'built-in overtime work" (whether
rendered or not) is integrated, is not prohibited by the Labor Code. Besides being a
product of agreement, the employee is not put at a disadvantage since he is paid overtime
premium even if he does not render actual overtime work (the situation presupposes that
the "all-inclusive salary" exceeds the statutory minimum wage rate). The higher rate
would also be advantagious to the employee for purposess of computing monetized leave
credits, separation pay, and retirement benefits since the base salary would be higher.

 An instance of government-sanctioned waiver of overtime pay is compressed workweek.

In this case, the management and the employees agree to reduce a 6-day, 8-hour
workweek intoa 5-day,12-hour workweek without overtime premium.The emplyee will
still be paid for all hours worked, but without the 25% OT premium.The agreement, which
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 must be for a definite period and requires DOLE approval, is predicated on the premise
that the arrangement is mutually-beneficial and not one-sided since the employees
receive certainadvantages ( e.g, a full day's rest with benefits like relief from traffic
concerns and reduction in transportation and meal cost) in exchange for the unpaid OT
premium.

 An employer is given wide discretion in implementing work schedules , including no

overtime work for certain class of employees ( who previousy were allowed to work
overtime) provided the same treatment is given to all members of the class (San Miguel
Corp. vs Layoc, GR No. 149640, 19 Oct 2007).

 By the very nature of their work, seamen,must stay on board the ir vessels beyond the
regular eight-hour work schedule. For them to be entiled to overtime pay, they must
submit proof of actual overtime work(Stolt-Nielsen Marine Services vs NLRC, GR No.
109156, 11 July 1996)

 An employer can always unilaterally withdraw the privilege of overtime pay to employees
not covered by Art. 82 (Salazar vs NLRC , GR No. 109210, 17 April 1996). This ruling is
debatable, since the theory of non-diminution of benefits and vested rights may be more
applicable.

Art. 88. Undertime not offset by overtime.Undertime work on any particular day shall not
be offset by overtime work on any other day. 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 in this Chapter.

Comment:

 Offsetting is not allowed because overtime work is paid a premium of 25% of the regular
wage rate.

 But if the employer waives the right to treat the undertime (tardiness) as an offense,
should the waiver be deemed valid?

Art. 89. Emergency overtime work.Any employee may be required by the employer
to perform overtime work in any of the following cases:

a. 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;

b. When it is necessary to prevent loss of life or property or in case of imminent

danger to public safety due to an actual or impending emergency in the locality caused
by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or
calamity;

c. When there is urgent work to be performed on machines, installations, or

equipment, in order to avoid serious loss or damage to the employer or some other
cause of similar nature;

d. When the work is necessary to prevent loss or damage to perishable goods; and

e. Where the completion or continuation of the work started before the eighth hour
is necessary to prevent serious obstruction or prejudice to the business or operations
of the employer.

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Comments:

 As a general rule, overtime work is consensual ( both employer and employee must
agree). If the employee refuses to render overtime work, and the employer's reason is not
among those listed in Art. 89, such refusal would not constitute insubordination.
Conversely, if the employee refuses despite the existence of any of the statutory grounds,
he is liable for insubordination.

 An agreement for regular overtime work ( e.g., daily 12-hour work schedule agreed in
advance ) is valid, and refusal of an employee to render overtime work without justifiable
reason is subject to disciplinary sanction.

 In case it is the Union which declines to comply with the agreed regular overtime, it would
constitute violation of the economic provision of the collective bargaining agreement.

Art. 90. Computation of additional compensation. For purposes of computing overtime

and other additional remuneration as required by this Chapter, the "regular wage" of an
employee shall include the cash wage only, without deduction on account of facilities
provided by the employer.

Comments:

 This provision is not consistent with the definition of “wages” which includes the
"reasonable value of facilities". Does this t violate the rule of a fair day's wage for a fair
day's work.

 The inequity is more apparent if the employee's daily rate ( inclusive of the equivalent
value of facilities) is set at minimum, for in that case there would be a violation of the
minimum wage law. From personal experience, very few employers resort to the use of
facilities as a way to comply with minimum wage.

DOLE Administration and Enforcement

(Book II, Rule X, Omnibus Rule Implementing the Labor Code)

Time & Payroll Records

 Every employer is required to keep individual time and payroll records of its employees,
to be kept in the main or branch office of the establishment.

 Managerial employees and managerial staff need not be required to keep individual time
records, provided that a record of their daily attendance is kept and maintained by the
employer.

 The employer is required to preserve time and payroll records for at least three (3) years
from the date of the last entry in the records. This timeline is aligned with the 3-year
prescriptive period for employment-related money claims.

 The Secretary of DOLE and his authorized reprensentatives have the right, at any time of
the day or night whenever work is being undertaken, to gain access to employer's time
and payroll records and to copy therefrom. They may also interview the workers.

 Because of this legal obligation to keep time and payroll records, the employer in money
claim cases have the burden of refuting an employee's specified money claims. In Symex
Security Services vs Rivera (GR No. 202613, 08 November 2017), the principle was
reiterated that:

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 "In this case, it is noteworthy to stress that respondents [employees] have presented their
pay slips to prove their monetary claims. It is settled that once the employee has set
out with particularity in his complaint, position paper, affidavits and other
documents the labor standard benefits he is entitled to, and which the employer
failed to pay him, it becomes the employer's burden to prove that it has paid these
money claims. Once more, he who pleads payment has the burden of proving it; and
even where the employees must allege nonpayment, the general rule is that the burden
rests on the defendant to prove payment, rather than on the plaintiff to prove
nonpayment. Petitioners [employer] could have easily presented pertinent company
[time and payroll records] to disprove respondents' claims. Yet, the records of the
case are bereft of such company records thus giving merit to respondents'
allegations. It is a rule that failure of employers to submit the necessary documents
that are in their possession as employers gives rise to the presumption that the
presentation thereof is prejudicial to their cause.

 In the ealier case of Loon vs Power Master Inc ( GR No. 189404, 11 December 2013),
the Supreme Court held that: "The general rule is that the burden rests on the employer to
prove payment rather than on the employee to prove non-payment of these money claims. The
rationale for this rule is that the pertinent personnel files, payrolls, records, remittances
and other similar documents – which will show that differentials, service incentive leave
and other claims of workers have been paid – are not in the possession of the worker
but are in the custody and control of the employer". Non-production of the payroll records
would be deemed suppression of evidence and labor tribunals would conclude that the money
claims have not been paid. PFFALLAR JR SSCRCL

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,