Legal ba ang Forced Leave w/out Pay?

**wowiesy** · February 2nd, 2009 02:37 AM

Originally Posted by FWC

Meron pang isang basis -- yung company grant which has a ripened into a company practice. There are already judicial laws (as opposed to legislated laws) regarding this. A grant is considered a company practice and elimination thereof will therefore constitute a diminution of benefit under the following conditions:

The period must be long and successive, three years, for instance. (Davao Integrated, GR 102132, Mar. 19, 1993).
The act must be done consistently and intentionally. (Tiangco vs. Leogardo, GR L-57636, May 16, 1983).
The act should not be a product of erroneous interpretation of a difficult or doubtful question of policy. (Globe Mackay, GR 74156, June 29, 1988).

In effect, even without a CBA or an existing policy, pag matagal nang intentionally na binibigay ng company, then it becomes a legal basis for claiming the benefit.

I guess this is reasonable....

BTW, the other year meron namang isang ruling na nag-allow ng withdrawal of benefits in cases of financial distress. This was the American Wire and Cable case.

yan din ang maganda (o sometimes nakakainis?) sa batas... or jurisprudence.... each case is different.. may maliit lang na detalye na naiba... maaaring maiba na totally ang magiging decision.... although mapa iisip ka rin kung ginagapang din (at nagagapang) ang SC.... parang pabago bago ang isip nila.... depende rin kung sino ang nakaupo.. depende rin sa pagkaka present ng abogado sa kaso....

Now, kung walang CBA, walang policy, at walang existing practive, then the Service Incentive Leave becomes the legal basis for granting leaves. Take note, however, that there is no VL or SL distinction in SIL. Basta bigyan mo lang ng 5 days na leave and that's it.
[SIZE=3] [/SIZE]

yan talaga ang pagkaka alam ko rin eh... pag walang CBA, walang existing policy... walang "tradition" or existing practice... SIL lang talaga... walang basis ang claim na may VL/SL...

**CVT** · February 2nd, 2009 09:14 AM

^^^ Kaya nga ang batas,- isinulat ng maraming gray area.... (Para may pagtatalunan at papasok ang mga abogado)...... :hysterical:

Hindi katulad ng technical na kumpleto sa specifications....

7404:laundry:

**FWC** · February 3rd, 2009 03:09 AM

Guys, just got this this morning. This was released by the DOLE just last Friday. I'm sure many companies and their lawyers do not have this in their hands yet.

==========

Republic of the Philippines

DEPARTMENT OF LABOR AND EMPLOYMENT

Intramuros, Manila

DEPARTMENT ADVISORY No. 2

Series of 2009

Guidelines on the Adoption of Flexible Work Arrangements

I. Purpose

This Advisory is being issued to assist and guide employers and employees in the implementation of various flexible work arrangements as one of the coping mechanisms and remedial measures in times of economic difficulties and national emergencies. Adoption of flexible work arrangements is considered as a better alternative than 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.

II. Concept

The Department recognizes the desirability and practicality of flexible work arrangements that may be considered by employers after consultation with the employees: taking info account the adverse consequence of the situation on the performance and financial condition of the company.

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 provided herein shall be temporary in nature.

Ill. Flexible Work Arrangements

The following are the flexible work arrangements which may be considered, among others:

Compressed Workweek refers to one where the normal workweek is reduced to less than six (6) days but the total number of work-hours of 48 hours per week shall remain. The normal workday is increased to more than eight hours but not to exceed twelve hours, without corresponding overtime premium. The concept can be adjusted accordingly depending on the normal workweek of the company pursuant to the provisions of Department Advisory No. 02, series of 2004, dated 2 December 2004.

Reduction of Workdays refers to one where the normal workdays per week are reduced but should not last for more than six months.

Rotation of Workers refers to one where the employees are rotated or alternately provided work within the workweek.

Forced Leave refers to one where the employees are required to go on leave for several days or weeks utilizing their leave credits if there are any.

Broken—time schedule refers to one where the work schedule is not continuous but the work-hours within the day or week remain.

Flexi—holidays schedule refers to one where the employees agree to avail the holidays at some other days provided there is no diminution of existing benefits as a result of such arrangement.

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.

IV. Administration of flexible Work Arrangements

The parties to the flexible work schemes shall be primarily responsible for its administration. In case of differences of interpretation, the following guidelines shall be observed:

The differences shall be treated as grievances under the applicable grievance mechanism of the company.

If there is no grievance mechanism or if this mechanism is inadequate, the grievance shall be referred to the Regional Office which has jurisdiction over the workplace for appropriate conciliation.

To facilitate the resolution of grievances, employers are required to keep and maintain, as part of their records, the documentary requirements proving that the flexible work arrangement was voluntarily adopted.

V. Notice Requirement

Prior to its implementation, the employer shall notify the Department through the Regional Office which has jurisdiction over the workplace, of the adoption of any of the above flexible work arrangements. The notice shall be in the Report Form attached to this Advisory.

The Regional Office shall conduct an ocular visit to validate whether the adoption of the flexible work arrangements is in accordance with this issuance.

Manila Philippines, 29 January 2009.

(Signed)

MARIANITO D. ROQUE

Secretary

Department of Labor & Employment

**wowiesy** · February 3rd, 2009 09:08 PM

thanks for the heads up! ang basa ko dito.. as long as you follow the guidelines.... there will be no presumption of illegal dismissal... which... maaaring yun ang magiging kauna unahang interpretation ng employees kung sakali....

**FWC** · February 4th, 2009 03:01 AM

Yes, that is correct. As long as the company follows the guidelines, especially the provision that states that these flexible working arrangements should be voluntarily adopted by both parties, then it could not be miscontrued as illegal dismissal.

It is only when the company singularly imposes its will on the employees that a grievance may occur.

On the other hand, if the employees do not agree to adopt any of the arrangement, then the company could always resort to retrenchment.

In effect, the employees have no choice but to go for the lesser evil which is the flexible working arrangement.

**CVT** · February 4th, 2009 08:26 AM

In this situation, everyone has no choice but to be "flexible"....

7404:laundry:

**_Qwerty_** · February 4th, 2009 08:55 AM

nakalagay dyan eh mutually acceptable by both parties.. sa palagay nyo ba papayag ang employees na mag forced leave w/o pay?? medyo mahirap ipatupad yan..

dito sa amin.. pwede kami mag forced leave pag total shutdown.. buong company, walang exemptions.. say 2 weeks walang pasok kasi walang work.. pero dapat lahat.. hindi pwedeng merong ilang papasok kasi unfair labor practice na naman yan..

sa part nang employer.. mas madali pa din mag retrenched.. basta kaya i justify na wala talagang work.. so bawas tao ang solusyon..

**jabembi** · April 30th, 2009 01:21 PM

hi to all po..

im an engineer here at clark pampanga..

naging practice na sa company namin (Manufacturing Semicon) na kapag kaunti lang order / sales or input hindi namin pinapasok ang mga operators (DAILY PAID)..so wala silang bayad..kasi no work no pay..usually 1- 5 days maximum lalu na from january to june usually..

pero sa aming mga monthly paid..ang ginagawa ng HR namin is hindi kami papasukin for example ng saturday..den we have to use our leave credits..

before yung bagong ruling sa flexible work sched, hindi magdedeclare ng temporary shutdown ang company..kasi usually 1-2 departments lang ang walang pasok..

ang tanong ko..pls help po..

1. Legal bayung ginagawa nila na papagamit sa aming monthly paid ang leave credits namin considering salaried employees kami?

2. Ano ba tlg ang difference ng monthyl sa daily paid in the first place?

THANK YOU PO..

**FWC** · May 1st, 2009 02:52 AM

1. Legal bayung ginagawa nila na papagamit sa aming monthly paid ang leave credits namin considering salaried employees kami?

Yes, it is. The DOLE advisory on flexible work arrangements specifically mentions this:

Ill. Flexible Work Arrangements

The following are the flexible work arrangements which may be considered, among others:

Forced Leave refers to one where the employees are required to go on leave for several days or weeks utilizing their leave credits if there are any.

2. Ano ba tlg ang difference ng monthyl sa daily paid in the first place?

Aside from the mode of payment, monthly-paid employees are considered paid for all days of the year, including all holiday (but excluding rest days). That means if there are holidays, they do not get extra pay unless they report for work, in which case they would earn holiday pay.

Daily-paid employees, on the other hand, are paid on a daily-basis. If there are regular (or legal) holidays, they get a holiday pay even if they don't work. On special holidays, they do not get paid unless they report for work.

Kaya nga masaklap sa daily-paid workers pag maraming special holidays kasi no-work, no-pay sila. Monthly-paid employees, on the other hand, still receive their salaries in full.