41. Rest day; who are entitled?

REST DAY o It shall be the DUTY of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than 24 consecutive hours after 6 consecutive normal work days. WHO IS ENTITLED? o All those NOT falling within the EXEMPTIONS under Art 82

42. Legal and special holidays. Who are entitled? LEGAL HOLIDAYS o NEW YEARS DAY (January 1), o MAUNDY THURSDAY (movable date) o GOOD FRIDAY (movable date) o ARAW NG KAGITINGAN (Monday nearest April 9) o LABOR DAY (May 1) o INDEPENDENCE DAY (Monday nearest June 12) o NATIONAL HEROES DAY (Last Monday of August) o BONIFACIO DAY (Monday nearest November 30) o CHRISTMAS DAY (December 25) o RIZAL DAY (Monday nearest December 30) o EIDL FITR (movable date) o EIDL ADHA (movable date) Holiday pay is a one-day (100%) pay given by law to an employee even if he does not work on a regular holiday (legal holiday). If a worker comes to work on a regular holiday, he earns 200% of his daily rate. SPECIAL HOLIDAYS O ALL SAINTS DAY (November 1) O LAST DAY OF THE YEAR (December 31) O NINOY AQUINO DAY (August 31) O In addition to those that would be declared as special non-working holidays Premium pay equal to 30% of a workers daily rate is given to workers who work during special holidays. WHO ARE ENTITLED? O All those NOT falling within the EXEMPTIONS under Art 82.

43. Entitlement of monthly paid employees to holiday pay. Insular Bank of Asia and America Employees Union v. Hon Inciong

o Court held that the Labor Code is clear that monthly-paid employees are not excluded from the benefits of holiday pay. o Court struck down Sec 2, Rule IV, Book III of the Implementing Rules and Policy Instructions No. 9, which provides that monthly-paid employees are presumed to be paid for all days in the month whether worked or not, as null and void. The Chartered Bank Employees Association v. Hon Blas Ople o Divisor to convert from monthly to daily rate must be 365 for monthly paid employees in order to be deemed as including holiday pay. Not 251 as done by the bank in the case SC: The 251 working days divisor is the result of subtracting all Saturdays, Sundays, and the ten (10) legal holidays from the total number of calendar days in a year. If the employees are already paid for all non-working days, the divisor should be 365 and not 251. Union of Filipro Employees v. Benigno Vivar, Jr. o When is it deemed the start of entitlement of holiday pay for monthlypaid employees NOTE: implementing rules before being struck down in the Insular Bank case provides for the presumption that monthlypaid employees are deemed to have been paid holiday pay as well o Holiday pay is deemed to be not included in monthly-paid employees only from the time that the implementing rule was struck down Doctrine of operative fact Presumption of validity before being declared void

44. Conversion of monthly pay to daily pay and vice-versa. The significance of the divisor or multiplier being used. Even if the divisor to convert the salary from monthly to daily is lower than 365 o The employee is still monthly-paid and all days of the month including the legal holidays are deemed paid o If the quotient is EQUAL to or GREATER than the LEGAL MINIMUM RATE. The Chartered Bank Employees Association v. Hon. Blas Ople o Divisor to convert from monthly to daily rate must be 365 for monthly paid employees in order to be deemed as including holiday pay. Not 251 as done by the bank in the case SC: The 251 working days divisor is the result of subtracting all Saturdays, Sundays, and the ten (10) legal holidays from the total number of calendar days in a year. If the employees are

already paid for all non-working days, the divisor should be 365 and not 251. THE SIGNIFICANCE OF THE DIVISOR BEING USED. o Union of Filipro Employees v. Vivar, Jr. The divisor assumes an important role in determining whether or not holiday pay is already included in the monthly-paid employees salary and in the computation of his daily rate. The respondent arbitrators order to change the divisor from 251 to 261 days would result in a lower daily rate which is violative of the prohibition on non-diminution of benefits found in Art 100 of the Labor Code. To maintain the same daily rate if the divisor is adjusted to 261 days, then the dividend, which represents the employees annual salary, should correspondingly be increased to incorporate the holiday pay.

45. Service incentive leave; who are entitled? Requisites for entitlement? SIL o Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay. The term at least one year of service shall mean service within twelve months, whether continuous or broken, reckoned from the date the employee started working, including authorized absences and paid regular holidays, unless the number of working days in the establishment as a matter of practice or policy, or provided in the employment contract, is less than twelve months, in which case, said period shall be considered as one year for the purpose of determining entitlement to the service incentive leave. WHO ARE ENTITLED? o Those NOT under the exemptions of Art 82 o Part-time workers Entitled to the full five days SIL benefit and not on a pro-rata basis. o On Contract workers o Piece-rate workers o This provision (Art 95. Right to SIL) shall NOT APPLY Those already enjoying the benefit herein Those enjoying vacation leave with pay of at least five days Those employed in establishments regularly employing less than ten employees Establishments exempted from granting SIL by the Secretary of Labor

46. Use of SIL; conversion? The implementing rules made by the Secretary of Labor and Employment provides: The service incentive leave shall be commutable to its money equivalent if not used or exhausted at the end of the year. COMMUTATION OF SICK LEAVE o SL/VL benefits and their conversion to cash are voluntary, not statutory, in character. Entitlement to them, especially by a corporate executive, must be proved. Must be proved to have ripened into company practice or policy which cannot be peremptorily withdrawn Kwok v. Philippine Carpet Manufacturing Corp. the Court cannot presume the existence of such privileges or benefits. The petitioner was burdened to prove not only the existence of such benefits but also that he is entitled to the same

47. Service charges? Who are entitled? Effect of abolition; SERVICE CHARGE o Collected by hotels, restaurants and similar establishments o Distributed at the rate of 85% for all covered employees and 15% for management o Share of employees shall be equally distributed among them WHO ARE ENTITLED? o ALL EMPLOYEES of covered employers, regardless of their positions, designations or employment status, and irrespective of the method by which their wages are paid EXCEPT those receiving more than P2000 a month. EFFECT OF ABOLITION o Share of covered employees shall be considered INTEGRATED in their wages o Basis shall be the average monthly share of each employee for the past 12 months immediately preceding the abolition or withdrawal of such charges.

48. Wages vs commission; distinction? When is a commission treated as a wage? WHEN IS A COMMISSION TREATED AS A WAGE o GENERAL RULE: Wage includes sales commissions In the computation of the separation pay, the salary base should include also the earned sales commissions

EXCEPTION: Soriano v. NLRC Commissions must be earned from actual transactions attributable to the salesman to be considered part of their basic salary in the computation of separation pay

49. Facilities vs supplement. Distinction? FACILITIES o Include articles or services for the benefit of the employee or his family But shall NOT include tools of the trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the employers business o Form part of the wage and when furnished by the employer are deductible therefrom, since if they are not so furnished, the laborer would spend and pay for them just the same SUPPLEMENTS o Constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings or wages DISTINCTION o The criterion is not so much with the kind of the benefit or item given, but its PURPOSE.

50. The concept of a fair days wage for fair days labor. Does it give a right to the worker? FAIR DAYS WAGE FOR FAIR DAYS LABOR o If there is no work performed by the employee there can be no wage or pay UNLESS the laborer was able, willing and ready to work BUT was prevented by management or illegally locked out, suspended or dismissed. o Where the employees dismissal is for a just cause, it would neither be fair nor just to allow the employee to recover something he has not earned and could not have earned.