I. Republic of the Philippines DEPARTMENT OF LABOR AND EMPLOYMENT Tntramuros, Manila EXPLANATORY BULLETIN ON PART-TIME EMPLOYMENT PRELIMINARY STATEMENT Technological progress, improved methods of production and division of labor are among the reasons which led to new developments in the distribution of working hours in a day, in a week or in a year. ‘The new trends in the pattern of working time have been reflected in the scheduling and staggering of working time. Experience shows, however, that various approaches to the scheduling of working time are inter-related and complementary. In the Philippines the most common type of these schemes is part-time work. The flexible arrangements for the present day situation raise questions on the applicability of Labor Code provisions particularly on conditions of employment and security of tenure. This is so since hours of work are among the main parameters for entitlement to statutory benefits and any innovation on working time arrangement needs close assessment of the relativity and adaptability of the laws, rules and regulation and allied issuances on these new patterns of working time. ‘Thus, the need for this Explanatory Bulletin. PART-TIME EMPLOYMENT DEFINED Part-time work is defined by ILO as “a single, regular or voluntary form of employment with hours of work substantially shorter than those considered as normal in the establishment." This definition excludes certain forms of employment which although referred to as part-time work, are in particular, irregular, temporary or intermittent employment, or cases where hours of work have been temporarily reduced for economic, technical or structural reasons.ul. Part-time work may take different forms depending on the agreed hours of work in a day, the days of work in a week or other reference periods. In the Philippines, however, the two most common and acceptable forms are four (4) hours work per day and weekend work or two (2) full days per week. The following Guidelines therefore is limited in application to the part- time employment in the above context, It is not intended to cover part-time employment of teachers who will be the subject of subsequent issuances and of professionals and persons whose service performance and compensation are not time-based. PAYMENT OF STATUTORY BENEFITS The benefits accorded by the Labor Code and related issuances are generally based on the normal working hours of eight in a day. Applying the principle of fairness and equity, therefore, for any reduction of hours of work substantially less than the normal, the employer may proportionately decrease the daily wage and wage-related benefits granted by law. This is in accordance with the principle of "a fair day's wage for a fair day's labor". In other words, the employer is not obliged to pay an employee working for less than eight hours a day, the wages due for eight hours work, unless there exists a company policy or individual or collective agreement stipulating a normal day's work to consist of less than eight hours. For work in excess of eight hours a day, the part-time worker is also entitled to overtime pay. For purposes of overtime pay under the law, a "day" is understood to be the twenty-four hour period which commences from the time the employee regularly starts to work. It is not necessarily the ordinary calendar day (like Monday, Tuesday, etc.) from 12 o'clock midnight to 12 o'clock midnight unless the employee starts working at midnight, which is unlikely, in which case the start of the 24-hour period in determining his workday coincides with the start of the calendar day. Thus, if a part-time employee regularly works from 11:00 a.m., to 3:00 p.m., the workday of such employee is from 11:00 a.m. to 11:00 a.m, the following day. In other words, the period from 11:00 a.m, to 3:00 p.m, is the regular working hours or shift of the employee while the period from 11:00 a.m. to 11:00 a.m. the following day is his work day. The holiday pay of a part-time worker, however, should be determined on a case-to-case basis, whichever is highest in any given case, as follows: regular wage per day; basic wage on the working day preceding the regular holiday if the employee is present or on leave with pay on the last working day immediately prior to the regular holiday; the average of his basic wages for thelast seven working days for employees who are paid by results; or the basic wage on the particular holiday, if worked. On special days, the principle of "no work, no pay" may be applied. If said days are worked, however, the mandated premium pay of at least thirty percent (30%) is due the part-time worker, as in the case of rest day work. With regard to service incentive leave, the Implementing Rules and Regulations of the Labor Code, as amended, provides that every employee who has rendered at least “one year of service" (as defined therein) shall be entitled to a yearly service incentive leave of five days with pay. Thus, a part-time worker is entitled to service incentive leave whether the service within 12 months is continuous or broken or where the working days in the employment contract as a matter of practice or policy is less than 12 months. The availment and commutation of the same can be proportionate to the daily work rendered and the regular daily salary, respectively. P.D. 851 which provides 13th month pay in the amount of not less than 1/12 of the total basic salary earned within a calendar year is likewise applicable to rank-and-file part-time workers considering that the law does not expressly exclude subject employees. Pursuant to the guidelines on the implementation of the 13th month pay law, covered employees are entitled to the benefit regardless of their designation or employment status, and irrespective of the method by which their wages are paid, provided that they have worked for at least one (1) month during a calendar year. For the purpose of 13th month pay entitlement, meanwhile, one (1) month service in a calendar year as requisite for entitlement should be reconciled with the idea of one normal working month in the establishment which for the part-time employee should be determined on total number of hours worked. The foregoing benefits are, however, without prejudice to any company practice or policy or individual or collective bargaining providing more benefits to said type of workers. SECURITY OF TENURE The same protection afforded to full-time workers with respect to security of tenure shall also be extended to part-time workers. Thus, protection provided under Articles 279 to 286 Book VI of the Labor Code and its implementing rules and regulations shall likewise be applied to said type of workers. If for example, a part-time employee becomes regular, he cannot be dismissed summarily without just or authorized cause and without complying with the twin requirements of notice and hearing as mandated by the dueprocess clause of the Constitution. Otherwise, he shall be considered as illegally dismissed. Article 281 of the above mentioned Book provides to wit: “Probationary employment - Probationary employment shall not exceed six months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. x x x An employee who is allowed to work after a probationary period shall be considered a regular employee." Under the Civil Code (Art. 13), “when the law speaks of month, it is understood to mean thirty (30) days, unless the particular months are designated, in which case the months shall be computed by the number of days which they respectively have." Using the aforestated principle in determining what constitutes a month and considering the intent of the law in allowing a probationary period prior to regularization, i.e., for the employer to test an employee's fitness for the job for which he is engaged, the six-month probationary period prescribed by law should be interpreted to mean the number of normal working days and hours within the normal six-month period in the establishment or undertaking. For this reason, part-timers should become regular in status, after working for the total number of hours or days, which completes a six-month probationary period of a full-time worker in the same establishment doing the same job under normal circumstances. Once they become regular employees, they are entitled to security of tenure under the law, and can only be separated for a just or authorized cause and after due process. One may further know if a part-time worker is a regular employee if any of the following conditions exists: a) the terms of his employment show that he is engaged as regular or permanent employee; b) the terms of his employment indicate that he is employed for a indefinite period; ©) he has been engaged for a probationary period and has continued in his employment even after the expiration of the probationary period, or 4) the employee performs activities which are usually necessary or desirable in the usual business or trade of the employer.On the other hand, where the employment contract is fixed or for a definite period only as contemplated by law, part-time employees are likewise entitled to tenurial rights during the entire period of their fixed employment. In other words, they cannot be separated from work without just or authorized cause. . Termination of employment for authorized causes requires payment of severance compensation, The Code provides that the termination of employment due to the installation of labor saving devices, redundancy, retrenchment to prevent losses, and closure or cessation of the operation of the business are authorized causes of dismissal. The said Code as amended further Provides that a written notice to the worker concerned shall be served at least one (1) month before the intended date of separation. In such cases, subject employees shall be entitled to termination pay mandated by the Labor Code, as amended and its implementing rules and regulations. The basis of computation of said benefit shall likewise be in accordance with said Regulation, i.e., on the latest salary rate unless the same was reduced by employer in order to circumvent the law, in which case the basis shall be the amount before reduction. In addition, allowances and commission, among others, which are regularly received should be included in the separation pay as held by the Supreme Court in the case of Songco, et. al. vs. NLRC et. al. RETIREMENT COMPENSATION There can be no dispute that part-time workers are also entitled to retirement pay of “one-half month salary" for every year of service under Republic Act 7641 after satisfying the following conditions precedent for optional retirement: (a) there is no retirement plan between the employer and employee, (b) the employee should have reached the age of sixty (60) years, and (c) should have rendered at least five (5) years of service with the employer. Meanwhile, the compulsory retirement age under the law is 65 years. The components of "one-half (1/2) month salary" in relation to retiremet pay of subject employees appears to be simple enough as the relevant provisions of the Labor Code and its implementing rules, and regulations and allied issuances are quite clear on the matter: a) 15 days" salary of the employee based on his latest salary rate, b) the cash equivalent of five (5) days of service incentive leave and c) one-twelfth (1/12) of the 13th month pay due the employee.VI. Applying the foregoing principle, the components of retirement benefit of part-time workers may likewise be computed at least in proportion to the salary and related benefits due them. NON-DIMINUTION OF BENEFITS Nothing in this Bulletin shall be construed as authorizing the withdrawal of any existing benefit of part-time employees provided under any law, order, agreement and employer practice or policy. 02 January 1996. JOSE S. BRILLANTES Acting Secretary ap G