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.
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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..

**FWC** · February 4th, 2009 10:06 AM

Come to think of it, wala naman talagang choice ang employees but to agree to a flexible working arrangement at these times. They know that companies could easily file for retrenchment because there is just not enough work for everyone on a full-time basis. So they would rather have everyone share in the belt tightening than to totally eliminate some employees' incomes. Kawawa naman pamilya noong mga ma retrench.

Many of the companies here in Laguna have actually already implemented some of the flexible work arrangements starting last month.

**wowiesy** · February 4th, 2009 05:51 PM

Originally Posted by _Qwerty_

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..

but in retrenchment... to comply eh you are also forced to shell out money (hindi ko naman sinasabi na masama yun) na kakailanganin din sana ng negosyo para makatawid sa unos.... naghihirap na nga sa krisis... sumuka pa ng cash to retrench... for a cash strapped company, instead na ilang porsyento lang nag nagsuffer sa retrenchment... lumalaki ang chance na buong company pa ang magsuffer ng closure.... although may legal claim na pag nag close ang company na dapat bayaran ng company separation.. maghahabol pa rin sa NLRC... so pare pareho ding talunan...

**FWC** · February 5th, 2009 02:12 AM

Originally Posted by wowiesy

but in retrenchment... to comply eh you are also forced to shell out money (hindi ko naman sinasabi na masama yun) na kakailanganin din sana ng negosyo para makatawid sa unos...

Actually, this depends on several factors.

If a company has a retirement plan with a provision on retrenchement, and sufficient retirement fund (which is usally the case with most large multinationals), the company does not need to get the funds out of its working capital. This is taken out of the retirement fund which is essentially the employees' money already. Of course, if the fund is severely depleted, the company would have to refund it. But this could be done over a long period of time when the company has sufficiently recovered.

On the other hand, if the company has no retirement plan and no retirement fund (the pay-as-you-go type), then it will be costly for the company.

But here's the tricky part: In most companies with a retirement plan (kahit hindi funded), the normal retirement pay is one month salary per year of service. However, in the Labor Code, the separation for retrenchment is only one-half month pay per year of service (actually it's more like 21 day's pay per year of service because of the method of calculation). So many companies take advantage of the crisis by retrenching employees which, in effect, spares them from paying the normal retirement pay when the employee retires. Ang kawawa diyan, yung mga tenured employees, especially those that are nearing retirement.

Okay lang kung my CBA which usually has a LIFO (last in, first out) provision for retrenchment. Pag walang CBA, kawawa ang mga tenured employees. Sila ang uunahing i-retrench. Bukod sa mas makatipid ang company sa retirement pay, makakatipid din sa sweldo kasi yung mga tenured usually mas mataas ang salary kaysa mga newer employees. And the sad thing is it's the law and there is nothing the employees can do about it.