Legal ba ang Forced Leave w/out Pay?

**ab_initio** · December 22nd, 2008 01:02 PM

HI, SIR WP.

[SIZE=2]ART. 95. Right to service incentive leave. - (a) 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. [/SIZE]
[SIZE=2][/SIZE][SIZE=2](b) This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay of at least five days and those employed in establishments regularly employing less than ten employees or in establishments exempted from granting this benefit by the Secretary of Labor and Employment after considering the viability or financial condition of such establishment. [/SIZE]
[SIZE=2][/SIZE][SIZE=2](c) The grant of benefit in excess of that provided herein shall not be made a subject of arbitration or any court or administrative action.
[/SIZE]

[SIZE=2]HERE'S THE LINK:[/SIZE]

http://www.chanrobles.com/legal4labor2.htm#BOOK%20III

[SIZE=4]ERRATUM[/SIZE]

[SIZE=2]i confused the conversion of mandatory leave to cash[/SIZE]: those in the government service, mandatory leave cannot be converted to cash as they have monthly leave credits which can be monetized. however, in the case of those in the private sector (private employment), since vacation leave and sick leave are not provided for by law, the mandatory leave or the service incentive leave may be monetized.

compelling an employee to go on forced vacation leave without pay may result to diminution of benefits, which is a violation of Section 100 of the Labor Code.

pasensiya na, i just posted those things in random. i am neither in the government nor in a private employment. that explains the confusion of two things. a bum. a street kiddo.

**wowiesy** · December 22nd, 2008 03:43 PM

Originally Posted by ab_initio

HI, SIR WP.

[SIZE=2]ART. 95. Right to service incentive leave. - (a) 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. [/SIZE]
[SIZE=2][/SIZE][SIZE=2](b) This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay of at least five days and those employed in establishments regularly employing less than ten employees or in establishments exempted from granting this benefit by the Secretary of Labor and Employment after considering the viability or financial condition of such establishment. [/SIZE]
[SIZE=2][/SIZE][SIZE=2](c) The grant of benefit in excess of that provided herein shall not be made a subject of arbitration or any court or administrative action.
[/SIZE]

[SIZE=2]HERE'S THE LINK:[/SIZE]

http://www.chanrobles.com/legal4labor2.htm#BOOK%20III

[SIZE=4]ERRATUM[/SIZE]

[SIZE=2]i confused the conversion of mandatory leave to cash[/SIZE]: those in the government service, mandatory leave cannot be converted to cash as they have monthly leave credits which can be monetized. however, in the case of those in the private sector (private employment), since vacation leave and sick leave are not provided for by law, the mandatory leave or the service incentive leave may be monetized.

compelling an employee to go on forced vacation leave without pay may result to diminution of benefits, which is a violation of Section 100 of the Labor Code.

pasensiya na, i just posted those things in random. i am neither in the government nor in a private employment. that explains the confusion of two things. a bum. a street kiddo.

in the context of the service incentive leave.. yes.. this is a form of forced leave... but ang presumption dito ay paid.. dahil pwde nga i-convert to cash... and mandated by law... ang understanding ko on the original question is aside from the mandated leave ( 5 day service incentive leave) and without a CBA that provides for vl / sl....

on the issue of forced leave that may lead to diminution of benefits... in my opinion.. it depends pa rin... kung daily paid ang employee at may no work no pay policy... there is no diminution of benefits to the effect... kung monthly paid or fixed salary yung employee.. regardless kung pumasok sya ng 8 hrs a day or 18 hrs a day.. den pag di sya pinagsweldo.. then that will constitute a diminution of benefits.. forced leave in effect...

sa hinaba haba ng usapin... ang maidadagdag ko pa... in cases like these, each 1 case is really specific to that case... kahit may mga jurisprudence na o batas, we still have to look at the actual circumstances of the case.. only if it exactly fits (all circumstances) will it be safe to cite jurisprudence or other relevant cases... pero pag hindi natin nakita ang buong circumstances ng kaso.. mahirap... lawyers tend to cite jurisprudence and relevant case materials based on their research.. but usually they put an emphasis on a portion of the case.. they usually emphasize only those that would be good for their case.. hoping that the judge will see it their way... sometimes (or most of the time) straighforward naman ang case facts.. so a straight legal advice will do... but kapag full blown case na... you really have to check all the facts and circumstances...

**ab_initio** · December 22nd, 2008 04:19 PM

Originally Posted by wowiesy

in the context of the service incentive leave.. yes.. this is a form of forced leave... but ang presumption dito ay paid.. dahil pwde nga i-convert to cash... and mandated by law... ang understanding ko on the original question is aside from the mandated leave ( 5 day service incentive leave) and without a CBA that provides for vl / sl....

this is the original question posed by the TS:

Originally Posted by BoyL3

hello tsikoteers, ask ko lang sa mga may alam sa labor code, pinapatanong lang nung fren ko dahil may bago kasi iniimplement ang company nila na forced leave w/o pay sa kanila na employees and marami ang apektado... iniimplement kasi ang forced leave sa mga non performers sa metrics sa kanilang callcenter, ibig sabihin pag di sila nagmeet sa performance metrics, pahinga muna sila pero walang bayad at pwede na bumalik sa work kung may bagong client, magpapasko pa naman kawawa ang mga taong na mawawalan ng trabaho.

on the issue of forced leave that may lead to diminution of benefits... in my opinion.. it depends pa rin... kung daily paid ang employee at may no work no pay policy... there is no diminution of benefits to the effect... kung monthly paid or fixed salary yung employee.. regardless kung pumasok sya ng 8 hrs a day or 18 hrs a day.. den pag di sya pinagsweldo.. then that will constitute a diminution of benefits.. forced leave in effect...

what the law excludes from the operation of SIL are those, among others, establishments employing less than ten persons, please see the above-quoted provision.

SIL is a statutory benefit, so swak pa rin siya sa Secc 100, LC.-non grant of this results to diminution.

sa hinaba haba ng usapin... ang maidadagdag ko pa... in cases like these, each 1 case is really specific to that case... kahit may mga jurisprudence na o batas, we still have to look at the actual circumstances of the case..
only if it exactly fits (all circumstances) will it be safe to cite jurisprudence or other relevant cases... pero pag hindi natin nakita ang buong circumstances ng kaso.. mahirap... lawyers tend to cite jurisprudence and relevant case materials based on their research.. but usually they put an emphasis on a portion of the case.. they usually emphasize only those that would be good for their case.. hoping that the judge will see it their way...

i was just answering to the queries as they come...we need to be mindful of the law and jurisprudence, otherwise we will lose our case just the same po.

sometimes (or most of the time) straighforward naman ang case facts.. so a straight legal advice will do... but kapag full blown case na... you really have to check all the facts and circumstances...

one member asked if there is ever a provision affecting forced leave, so i quoted it...

**wowiesy** · December 22nd, 2008 08:15 PM

frm the original question... may context na new forced leave at nakatali sa performance metrics... i presumed (possibly wrongly) that this is not Service Incentive Leave (SIL)... since tied to performance... in this case... the call center giving or not giving the SIL is another matter since legally mandated nga siya... and I will also presume that the call center in question employs more than 10 people (sa laki ng investment sa call center... sayang pag ilan lang seats mo)... so pag SIL ang pinag usapan na forced leave.. definitely.. kelangan with pay... or monetized... pero kung "forced leave" na as described in the original question na pag hindi nagperform ng ayon sa isang standard eh hindi muna binibigyan ng schedule pumasok at hindi sya bayad sa mga araw na hindi siya pumasok... ibang usapan na to compared to SIL... uulitin ko... the SIL is mandated whether mag perform ka o hindi.. basta you have worked at least 6 months sa isang kumpanya.. entitled ka na dito... so hindi sya tied directly to performance....

I hope I understand it right.. that mandated leave (or forced leave) yung SIL.. it can be monetized in certain cases.. and it is mandated subject to certain exemptions... kaya I didn't think na SIL ang pinag uusapan dito...

**ab_initio** · December 22nd, 2008 11:00 PM

i was looking it from the issue of forced leave which is not paid. i wasn't considering a slowing down of production to cut the cost...employer should have said temporary shut down not forced leave. then i should have addressed the query by giving him the requirements...

kaya nga nagkakaroon ng problema kasi employer doesn't want to furnish work in the guise of an erroneous use of forced leave...if employer wants to slow down production so as to cut the cost, he can't do just that. there are legal requirements. he can't hide under the cloak of an erroneous interpretation of forced leave. erroneous na nga ang interpretation, ayaw pa magbayad.

**wowiesy** · December 23rd, 2008 12:27 PM

Originally Posted by ab_initio

i was looking it from the issue of forced leave which is not paid. i wasn't considering a slowing down of production to cut the cost...employer should have said temporary shut down not forced leave. then i should have addressed the query by giving him the requirements...

kaya nga nagkakaroon ng problema kasi employer doesn't want to furnish work in the guise of an erroneous use of forced leave...if employer wants to slow down production so as to cut the cost, he can't do just that. there are legal requirements. he can't hide under the cloak of an erroneous interpretation of forced leave. erroneous na nga ang interpretation, ayaw pa magbayad.

may specific requirements pag temporary shutdown? I didn't know that... kung whole company? what if a particular section lang (say in a manufacturing setup.. wherein a particular production line that produces a specific product isn't doing good in the market but the other product lines of the whole company is doing well naman) or say a food manufacturing company that has regular maintenance staff (plumber, carpenter etc - but these maintenance guys are hired for the upkeep of the utilities and the building of the factory and dumating sa point na halos wala na new requirement for maintenance or carpentry work) is there a legal definition of forced leave? temporary shutdown forces employees to have no work.. same ang effect? or may different legal definition din on temporary shutdown?

**ab_initio** · December 23rd, 2008 01:26 PM

^^ yes, Sir Wow there is. this is already under Book Six of the Labor Code on termination of employment. i googled 'em and i have them for you. hehehe, part time researcher na yata ako...

please check the link:

http://www.chanrobles.com/implementi...efulltext.html

and i think Murillo v. Sun Valley may help you, i can't recall the correct citation.

please check 'em...tamad ako magbasa e. but definitely these could help you.

i thank chanrobles for their amazing website...wehehehe

**working pinoy** · December 23rd, 2008 01:48 PM

Originally Posted by CVT

Sadly, part of the company's world-wide effort to conserve cash, because of the current world economic condition- kaya, sadly, no pay.......

7202:bruce_lee:

Pareho pala tayo... This is the driest Christmas I ever had...

But sabi nga nila, let's make the most of it... Our families can still be happy... even without most of those things usually attached to Christmas...

**working pinoy** · December 23rd, 2008 02:18 PM

Originally Posted by ab_initio

yep. it's a Labor Code provision, somewhere in between Sec 90 to 100. then there's the implementing rules that we can refer. i'll check my reference when i get home. m still in transit.

Ab_initio, thanks a lot for the discussion and the links. street lawyer ka nga...

Thankfully, even if we don't have a union/CBA, we have been given the lawful number of VLs and SLs. So, it's VL that I used when we were put on forced leave. My co-workers and I are going to talk about our options. And thanks for the input. Thanks for the wishes...

Thanks also to wowiesy's questions and views.

**BoyL3** · January 30th, 2009 09:39 AM

update ko lang ang thread about sa frend ko, na forced leave without pay na siya, tapos di pa pwedeng mag work sa ibang company, pag within 6 months daw di sya naibalik sa trabaho, bibigyan daw ng separation pay, half ng montthly rate nya x years of service...

kung pamilyado kang tao, ano ipapakain mo sa mga dependents mo kung wala kang trabaho 6 months? parang iniipit na lang ang empleyado para mag resign, syempre nga naman pag nagresign ka wala nang separation pay.