ART. 95 1. 1.1.

RIGHT TO SERVICE INCENTIVE LEAVE (SIL)

the employees, to prove that there are less than 10 employees in the company.

2.
Meaning of One Year of Service service within 12 months whether continuous or broken, reckoned from the date the employee started working, including authorized absences and paid regular holiday UNLESS the number of working days as a matter of practice/policy or provided in the employment contract is less than 12 months, then said period shall be considered one year for the purpose of determining entitlement to the service incentive leave. 1.2. Part-time Workers

COMMUTATION OF SIL

The Code has no provision on the commutation or the conversion to cash of unused service incentive leave. But the IRR by DOLE requires it. The law and the rules both state that the SIL need not be given to employees already enjoying VLs with pay of at least 5 days. Questions: If a company grants 15 days VL, is the company obliged to pay the cash equivalent of at least 5 days VL unused at the end of the year? If 5 of the 15 VL is SIL, does it follow that at least 5 of the 15 days VL must be converted to cash if unused at years end? If the employer does not do so, does the employer violate the law on SIL? 2.1 Basis of Computation Salary rate at the date of commutation. May be on a pro-rata basis. Ex. Hired: January 1, 1989 Separated: March 1, 1990 SIL earned as of Dec. 31 1989 = 5 days Proportionate SIL for Jan and Feb 1990 = (2/12 x 5 days) = 0.833 day Total accrued SIL as of Separation date = 5.833 Thus if base pay is P10,000, what shall be the amount of the conversion? 3. SICK LEAVE AND VACATION LEAVE AS VOLUNTARY BENEFITS

Advisory Opinion of the Bureau of Working Conditions of DOLE: part-time workers are entitled to the full benefit of the yearly 5 days incentive leave with pay. Art. 95 speaks of the number of months in a year for entitlement to said benefit (and not the number of hours worked in a day etc). Part-time are entitled to the full five days and not on a pro-rata basis. But DOLEs Explanatory Bulletin on Part-time Employment allows proportionate availment and commutation of the SIL. To quote:xxx The availment and commutation of the same can be proportionate to the daily work rendered and the regular daily salary, respectively. 1.3 On Contract Workers Teachers (Cebu Institute of Technology vs. Ople): The phrase those who are engaged on task or contract basis should however be related with field personnel applying the rule on ejusdem generic that general and unlimited terms are restrained and limited by the particular terms that they follow. The petitioners teaching personnel cannot be deemed doing field duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty. 1.4 Piece-Rate Workers Makati Haberdashery ruled that piece-rate employees are not entitled to service incentive leave pay. But the SC appears to have changed its mind in the later LABOR CONGRESS case. (Read comments in Art. 101 regarding workers paid by result). 1.5. Excluded Employer; Burden of Proof Establishments regularly employing less than 10 employees. When an employer claims that it falls within the exception, it is incumbent upon such employer to show that he belongs to a class excepted by the law from the general rule. Specifically, it is the employers duty, not

Five-day service incentive leave is mandatory Vacation and Sick Leaves are voluntary. Discretionary policy of the employer or from CBA SLs, VLs, Maternity leaves, etc are in intended to be replacements for regular income which otherwise would not be earned because an employee is not working during the period of said leaves. They are intended to alleviate the economic conditions of the workers. VLs purpose: Not merely to give employee additional salary or bounty but to afford the laborer a chance to get a much needed rest to replenish his worn out energies and acquire new vitality to enable him to efficiently perform his duties. If an employee allows the years to go by in silence and did not avail VLs, he waives it. It is thus a mere concession or act of grave of the employer. The employer may impose certain conditions for other voluntary benefits. Ex is the case of SMB where it made a regulation stating that if an employee does not choose to enjoy his yearly sick leave of thirty days, he may accumulate such leave up to a maximum of six months and enjoy his six months sick leave at the end of the sixth year but may not commute it to cash.

3.1.

Commutation of Sick Leave

If the company, for three years, has granted and paid the cash equivalent of unenjoyed portion of the SL, it may be deemed to have ripened into company practice or policy which cannot be peremptorily withdrawn. Bottomline: SL/VLs and their conversion to cash are voluntary, not statutory in character. Entitlement to them, especially by a corporate executive, must be proved. In cases of a corporation, Board resolution must approve such grant before it can be taken into effect. 3.2. Rationale for accumulation and conversion

Rendered at least 1 year of service, continuous or broken at the time of the effectivity of this act b. Notified employer of availment within reasonable time c. Present a Solo Parent ID to employer not convertible to cash unless otherwise stipulated. Non-compliance of employer=damages Other than the paid leave, the law grants other benefits such as educational benefit, flexible work schedule, and housing benefits. 5.1. a. Solo Parent Defined

a.

In CBAs, the rationale for the accumulation of leave credits and their conversion to cash is aimed primarily at encouraging workers to work continuously and with dedication for the company. It is also to lure the employees to stay with the company. The basis of the conversion must be the LAST PREVAILING SALARY received by the employee. 4. PATERNITY AND MATERNITY LEAVE

RA 8187 grants paternity leave of 7 days (not 7 working days) with full day to all MARRIED male employees in the private and public sectors. Available only for the first four deliveries of the LEGITIMATE spouse with whom the husband is COHABITING. Delivery: childbirth, miscarriage and abortion Purpose: To enable the husband to lend support to his wife during the period of recovery and/or in the nursing of the newly born child. IRR sets conditions to make one entitled to such paternity leave benefit (sec. 3 of the IRR of RA 8187). a. Employee at the time of delivery b. Is cohabiting with spouse at the time of delivery (birth or miscarriage but abortion is not mentioned) c. Applied for paternity leave in accordance with Sec 4 d. His wife has given birth or suffered a miscarriage Not convertible to cash when unused Maternity leave benefit is granted under the social security law in relation to Art. 133 of the LC. 5. PARENTAL (SOLO PARENT) LEAVE

Woman who gives birth as a result of rape or crimes against chastity even without final conviction. But the mother should keep and raise the child b. Left solo or alone with the responsibility due to death of spouse c. While the spouse is detained or serving sentence for a criminal conviction for at least 1 year d. Physical and/or mental incapacity of spouse as certified by public medical practitioner e. Legal separation or de facto separation from spouse for at least 1 year. But he/she must be entrusted with the custody of the children f. Declaration of nullity or annulment of marriage as decreed by a Court or by a church. But he/she must be entrusted with the custody of the children. g. Abandonment of spouse for at least 1 year h. Unmarried mother/father who has preferred to keep and rear his/her child/ren instead of giving them up to welfare institutions or to others i. Any other person who solely provides parental care and support to a child/ren provided he/she is duly licensed as a foster parent by the DSWD or duly appointed legal guardian by the court j. Any family member who assumes the responsibility of head of family as a result of death, abandonment, disappearance or prolonged absence of the parents or solo parent. But such circumstances should last for at least 1 year Children- living with and dependent upon the solor parent for support who are unmarried, unemployed and below 18 years old, or even 18 years old and above but are incapable of self-support because of mental and/or physical defect or disability. 6. BATTERED WOMAN LEAVE

RA 8972 Solo Parents Welfare Act not more than 7 working days every year and to solo parent employee who has rendered at least 1 year of service not more than 7 means that one-day leave is legal compliance cumulative total each year cannot exceed seven days it is in addition to the legally mandated leaves = SIL, SSS Maternity Leave, Paternity Leave Conditions are also set to make one entitled to such benefit.

for female employees only. For discussion, see Art. 133 discussion. ART. 96 1. COVERAGE AND DISTRIBUTION

Apply only to establishments collecting service charges including those entities operating primarily as private subsidiaries of the government. Rule applies to all employees of covered employers, regardless of their positions, designations or employment status. 85% shall be distributed to the

covered employees except managerial employees while the remaining 15% shall be retained by management to answer for losses and breakages and for distribution to managerial employees at the discretion of management in the latter case. Shares shall be distributed and paid to the employees not less than once every 2 weeks or twice a month at intervals not exceeding 16 days. 2. RULE IF COLLECTION OF SERVICE CHARGE IS ABOLISHED

In case the service charge is abolished, the share of covered employees shall be considered integrated in their wages. The basis of the amount to be integrated shall be the average monthly share of each employee for the past 12 months immediately preceding the abolition or withdrawal of such charges. 3. TIPS

if not collective service charges but has practice or policy of monitoring and pooling of tips given voluntarily by customers, same manner of distribution as the service charge.