Legal ba ang Forced Leave w/out Pay?

[ab_initio]

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...

di pwede po ito Sir...ano reason ulit yung bakit floating siya?

[wowiesy]

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.

teka.. lawful number of VLs and SLs kahit walang CBA/Union? meron bang ganun? di ba 5 days Service Incentive Leave lang ang mandated? It's the CBA that provides for the VLs / SLs? Paano nangyari na without CBA may VL/SL? Ilan days to?

[wowiesy]

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.

actually.. almost ganyan din ang pagkaka alam ko... although for sure hindi namin company yan dahil dito wala pa kami sa point na pina pa forced leave namin yung mga tao...

yan din yung nabanggit ko in previous messages... pero yung hindi pupuwede pumasok sa ibang company during the 6 months waiting time... foul yun... hindi sya fair and decent...

[wowiesy]

^^ 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

i've checked Book6.. so far sa pagkaka intindi ko wala naman mention of temporary shutdown (special definition)... 6 months or more pa rin ang threshold period... and again... ang pagkaka basa is termination...

in the current crisis... ano ba ang presumption dapat? na pag nag forced leave eh.. the intent is to terminate but circumvent the labor laws? or the intent is NOT TO TERMINATE (in short try to keep the people dahil magagaling na) but to cut costs in some way or another? alangan naman tuloy pa rin na papasukin yung tao kahit walang trabaho? I think the keyword here is INTENT.... although wala sa batas yun... sadly... there is no objective means of determining INTENT ... maaaring subject to interpretation based on the acts of a certain party.. on the other hand.. mahirap din i-prove that the INTENT is really to keep the people.... pero kung 6 months waiting tapos pagbabawalan ka na humanap kahit man lang part time job.... foul talaga yun...

[wowiesy]

^^ 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

yes chanrobles has good legal material reference...

but.. hindi ko po mahanap yung specific na binanggit na reference sa Murillo v Sun Valley na requirements kapag shutdown... sa Omnibus Rules Book III, all i found regarding temporary shutdown is SECTION 7. which states, and i quote:

SECTION 7. Temporary or periodic shutdown and temporary cessation of work. — (a) In cases of temporary or periodic shutdown and temporary cessation of work of an establishment, as when a yearly inventory or when the repair or cleaning of machineries and equipment is undertaken, the regular holidays falling within the period shall be compensated in accordance with this Rule.

(b) The regular holiday during the cessation of operation of an enterprise due to business reverses as authorized by the Secretary of Labor and Employment may not be paid by the employer.

ang pagkaka intindi ko dito... kapag nag temporary shutdown say 2 weeks.. at within that time ay may tumapat na holiday (regular holiday), then dapat yung holiday pay ng empleyado ay bayaran... pero silent sya on the days na hindi holiday, and naka shutdown... i presume therefore na sa ganitong case... kung may no work no pay policy ang company, then hindi bayad yung mga araw na naka shutdown, for those na hindi pumasok...

dun naman sa reference ng GR67272 Murillo et. al v. Sun Valley.. the Court made references to certain requirements kapag may temporary shutdown .. which hindi ko mahanap sa Ombinus Rules.. yung sa GR67272... it's possible that it was referring to an earlier statute or issuance... can you help me point which exactly issuance is this?

para malaman ko proper compliance in the future if ever... hehe.. thanks!!

[wowiesy]

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.

bago talaga sa akin to eh..

ab_initio.. can you help me out here? what particular section / article sa labor code provides for lawful VL/SL aside from the Service Incentive Leave... in the environment na walang CBA?

[wowiesy]

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.

yes... for those who already have VL / SL benefits... and then you compel them to go forced leave without pay.. definitely.. diminution of benefits talaga...

pero yung sa walang VL/SL benefits, and then you compel them to go forced leave without pay... ibang topic na po di ba?

[FWC]

yes... for those who already have VL / SL benefits... and then you compel them to go forced leave without pay.. definitely.. diminution of benefits talaga...

pero yung sa walang VL/SL benefits, and then you compel them to go forced leave without pay... ibang topic na po di ba?

Depende rin.

If you compel employees to go on forced leave even if they still have VL/SL credits, and you don't commute to cash the leave credits or allow the employees to use them later on, they they may file a claim for it.

But if you will commute them to cash, or allow employees to avail of them later on, then you can do it.

Many companies in the manufacturing sector, especially those who shut down towards the last part of the year, put the employees on leave without pay. There are two reasons for this. First is the ease of administration. Second is it does not set any precedents that will run counter to the provisions of the policies on the VL and most especially, the SL. Then at the start of the following year, lahat ng may mga leave credits pa, commuted to cash na.

Technically, the term "diminution of benefits" does not really apply here. The correct term is "withholding of benefits." Hindi naman kasi binawasan, eh. Andoon pa rin yun as a contractual obligation. Hindi lang pinagamit sa employee.

[wowiesy]

Depende rin.

If you compel employees to go on forced leave even if they still have VL/SL credits, and you don't commute to cash the leave credits or allow the employees to use them later on, they they may file a claim for it.

But if you will commute them to cash, or allow employees to avail of them later on, then you can do it.

i got this point and i totally agree with it...

Many companies in the manufacturing sector, especially those who shut down towards the last part of the year, put the employees on leave without pay. There are two reasons for this. First is the ease of administration. Second is it does not set any precedents that will run counter to the provisions of the policies on the VL and most especially, the SL. Then at the start of the following year, lahat ng may mga leave credits pa, commuted to cash na.

sounds fair naman to.. although nabanggit na rin... for ease of administration.. pinaka simple is no work no pay na lang.... then whatever SL/VL benefits.. commute to cash na lang pagpasok ng next year... puwede pa hulugan ... like kung 15VL/15SL per year... pupuwedeng tig 5days worth ang release every month... aabot ng 6 months bago mairelease lahat hehe...

Technically, the term "diminution of benefits" does not really apply here. The correct term is "withholding of benefits." Hindi naman kasi binawasan, eh. Andoon pa rin yun as a contractual obligation. Hindi lang pinagamit sa employee.

nagiging diminution of benefits kung dating ine-enjoy ng tao (like avail of VL/SL credits or commuted to cash)... tapos biglang hindi binigay (both SL/VL credits and also not commuted to cash)....

ang naka bitin na tanong pa rin sa isip ko regarding this....

in the absence of a CBA or existing policy in a company regarding VL/SL benefits and/or credits... what would be the basis for "lawful number of VL/SL" as mentioned in the post made by working_pinoy last 12/23/2008 1318H... is this the same as that of the Service Incentive Leave as that provided for in the Labor Code?

[FWC]

...nagiging diminution of benefits kung dating ine-enjoy ng tao (like avail of VL/SL credits or commuted to cash)... tapos biglang hindi binigay (both SL/VL credits and also not commuted to cash)....

Well, if you put it that way, maari rin. Although, technically, it is not the correct term. But it would take a long discussion to explain why.

...ang naka bitin na tanong pa rin sa isip ko regarding this....

in the absence of a CBA or existing policy in a company regarding VL/SL benefits and/or credits... what would be the basis for "lawful number of VL/SL" as mentioned in the post made by working_pinoy last 12/23/2008 1318H... is this the same as that of the Service Incentive Leave as that provided for in the Labor Code?

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. 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.

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]