a. Compressed Work Week (DA 02, s. 2004)

5. Overtime work

a. Compressed work week b. Built-in overtime

A. Conditions of Employment (part 2 of 4)

[ DOLE ADVISORY NO. 02, S. 2004, December 02, 2004 ] IMPLEMENTATION OF COMPRESSED WORKWEEK SCHEMES

I. PURPOSE AND COVERAGE

This Advisory is being issued to guide employers and workers who may opt to adopt a mutually acceptable compressed workweek (CWW) scheme suitable to the requirements of the firm.

This Advisory may be used in all establishments except those in the construction industry, in health services, in occupations requiring heavy manual labor, or in occupations or workplaces in which workers are exposed to airborne contaminants, human carcinogens, substances, chemicals or noise that exceed threshold limit values or tolerance levels for an eight-hour workday as prescribed under existing Occupational Safety and Health Standards (OSHS).

II. POLICY

As a matter of policy, and taking into account the emergence of new technology and the continuing restructuring and modernization of the work process, the Department of Labor and Employment (DOLE) encourages employers and workers to enter into voluntary agreements adopting CWW schemes based on the following objectives:

• To promote business competitiveness and productivity, improve efficiency by lower operating costs, and reduce work-related expenses of employees;
• To give employers and workers flexibility in fixing hours of work compatible with business requirements and the employees need for a balanced work life; and
• To ensure the safety and health of employees at the workplace at all times.

For purposes of administering or enforcing existing laws and rules on work hours, overtime compensation and other relevant labor standards, DOLE shall recognize only those CWW schemes that have been entered into consistent with this Advisory.

III. CONCEPT AND DEFINITION

The Labor Code provides that the normal work hours per day shall be eight hours. Work may be performed beyond eight hours a day provided the employee is paid for the overtime work. On the other hand, the normal number of workdays per week shall be six days, or a total of forty-eight (48) hours based on the normal workday of eight hours. This is without prejudice to firms whose normal workweek is five days, or a total of forty (40) hours based on the normal workday of eight hours.

For purposes of this Advisory, a CWW scheme is an alternative arrangement whereby the normal workweek is reduced to less than six days but the total number of normal work hours per week shall remain at 48 hours. The normal workday is increased to more than eight hours without corresponding overtime premium. This concept can be adjusted accordingly in cases where the normal workweek of the firm is five days.

IV. SPECIFIC GUIDELINES

Conditions: DOLE shall recognize CWW schemes adopted in accordance with the following:

• The CWW scheme is undertaken as a result of an express and voluntary agreement of majority of the covered employees or their duly authorized representatives. This agreement may be expressed through collective bargaining or other legitimate workplace mechanisms of participation such as labor-management councils, employee assemblies or referenda.
• In firms using substances, chemicals and processes or operating under conditions where there are airborne contaminants, human carcinogens or noise prolonged exposure to which may pose hazards to the employees' health and safety, there must be a certification from an accredited health and safety organization or practitioner or from the firm's safety committee that work beyond eight hours is within threshold limits or tolerable levels of exposure, as set in the OSHS.
• The employer shall notify DOLE, through the Regional Office having jurisdiction over the workplace, of the adoption of the CWW scheme. The notice shall be in DOLE CWW Report Form attached to this Advisory.

Effects. A CWW scheme which complies with the foregoing conditions shall have the following effects:

• Unless there is a more favorable practice existing in the firm, work beyond eight hours will not be compensable by overtime premium provided the total number of hours worked per day shall not exceed twelve (12) hours. In any case, any work performed beyond 12 hours a day or 48 hours a week shall be subject to overtime premium.
• Consistent with Article 85 of the Labor Code, employees under a CWW scheme are entitled to meal periods of not less than sixty (60) minutes. Nothing herein shall impair the right of employees to rest days as well as to holiday pay, rest day pay or leaves in accordance with law or applicable collective bargaining agreement or company practice.
• Adoption of the CWW scheme shall in no case result in diminution of existing benefits. Reversion to the normal eight-hour workday shall not constitute a dimunition of benefits. The reversion shall be considered a legitimate exercise of management prerogative, provided that the employer shall give the employees prior notice of such reversion within a reasonable period of time.

Administration of CWW Scheme. The parties to the CWW scheme shall be primarily responsible for its administration. In case of differences of interpretation, the following shall be observed:

• The differences shall be treated as grievances under the applicable grievance mechanism of the firm.
• If there is no grievance mechanism or if this mechanism is inadequate, the grievance shall be referred to the Regional Office which shall conduct a training and assistance visit (TAV) pursuant to Section 3 of Department Order No. 57-04.
• The purpose of the TAV is to ascertain, through the most practical and least litigious way possible, whether or not the scheme is the result of a voluntary agreement or is supported by the appropriate certification from an accredited safety and health organization or practitioner. Where appropriate, the TAV may include the conduct, as may be appropriate, of a referendum or work environment measurement (WEM) to determine actual work conditions.

To facilitate the resolution of grievances, employers are required to keep and maintain, as part of their records, the documentary requirements proving that the CWW scheme was voluntarily adopted and the certification that the scheme is consistent with OSHS.

• In the absence of proof of voluntary agreement or safety and health certification, the employer shall pay the employees concerned any overtime pay that may be owing to them as if the CWW scheme did not exist. If it turns out that work beyond eight hours is not consistent with OSHS, the parties shall immediately revert to a normal eight-hour workday.

V. PUBLICATION AND POSTING

This Advisory shall be published in two newspapers of general circulation and henceforth shall be part of the labor education manuals to be developed by DOLE. Every firm adopting a CWW scheme shall ensure that a copy of this advisory is posted in a conspicuous location in the workplace.

R.A. No. 11165, secs. 3-5

Section 3. Telecommuting Defined. - As used in this Act the term "telecommuting" refers to a work arrangement that allows an employee to work from an alternative workplace with the use of telecommunications and/or computer technologies.

Section 4. telecommuting Program. - An employer in private sector may offer a telecommuting program to its employees on a voluntary bases, and upon such terms and conditions as they may mutually agree upon: Provided, That such terms and conditions shall not be less than the minimum labor standards set by law, and shall include compensable work hours, minimum number of work hours, overtime, rest days, and entitlement to leave benefits. In all cases, the employer shall provide the telecommuting employee with relevant written information in order to adequately apprise the individual of the terms and conditions of the telecommuting program, and the responsibilities of employee.

Section 5. Fair Treatment. - The employer shall ensure that telecommuting employees are given the same treatment as comparable employees working at the employer's premises. All telecommuting employee shall:

(a) Receive a rate of pay, including overtime and night shift differential, and other similar monetary benefits not lower than those provided in applicable laws, and collective bargaining agreements. (b) Have the right to rest periods, regular holidays, and special nonworking days. (c) Have the same or equivalent workload and performance standards as those of comparable workerat the employer's premises. (d) Have the same access to training and career development opportunities as those of comparable workers at the employer's premises, and be subject to the same appraisal policies covering these workers. (e) Receive appropriate training on the technical equipment at their disposal, and the characteristics and conditions of telecommuting. (f) Have the same collective rights as the workers at the employer's premises, and shall not be barred from communicating with workers' representatives.1âwphi1

The employer shall also ensure that measures are taken to prevent the telecommuting employee from being isolated from the rest of the working community in the company by giving the telecommuting employee the opportunity to meet with colleagues on a regular basis, and opportunity to meet with colleagues on a regular basis, and allowing access to company information.

• Non-compensable hours
• Rest periods – Labor Code, arts. 91-93; Omnibus Rules Implementing the Labor Code, Book III, Rule III, secs. 1-9

Labor Code, arts. 91-93

Article 91. Right to weekly rest day.

It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than twenty-four (24) consecutive hours after every six (6) consecutive normal work days.

The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Secretary of Labor and Employment may provide. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds.

Article 92. When employer may require work on a rest day. The employer may require his employees to work on any day:

In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life and property, or imminent danger to public safety;

In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which the employer would otherwise suffer;

In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures;

To prevent loss or damage to perishable goods;

Where the nature of the work requires continuous operations and the stoppage of work may result in irreparable injury or loss to the employer; and

Under other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment.

Article 93. Compensation for rest day, Sunday or holiday work.

Where an employee is made or permitted to work on his scheduled rest day, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage. An employee shall be entitled to such additional compensation for work performed on Sunday only when it is his established rest day.

When the nature of the work of the employee is such that he has no regular workdays and no regular rest days can be scheduled, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage for work performed on Sundays and holidays.

Work performed on any special holiday shall be paid an additional compensation of at least thirty percent (30%) of the regular wage of the employee. Where such holiday work falls on the employee’s scheduled rest day, he shall be entitled to an additional compensation of at least fifty per cent (50%) of his regular wage.

Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate.

Omnibus Rules Implementing the Labor Code, Book III, Rule III, secs. 1-9

SECTION 1. General statement on coverage. — This Rule shall apply to all employers whether operating for profit or not, including public utilities operated by private persons.

SECTION 2. Business on Sundays/Holidays. — All establishments and enterprises may operate or open for business on Sundays and holidays provided that the employees are given the weekly rest day and the benefits as provided in this Rule.

SECTION 3. Weekly rest day. — Every employer shall give his employees a rest period of not less than twenty-four (24) consecutive hours after every six consecutive normal work days.

SECTION 4. Preference of employee. — The preference of the employee as to his weekly day of rest shall be respected by the employer if the same is based on religious grounds. The employee shall make known his preference to the employer in writing at least seven (7) days before the desired effectivity of the initial rest day so preferred.

Where, however, the choice of the employee as to his rest day based on religious grounds will inevitably result in serious prejudice or obstruction to the operations of the undertaking and the employer cannot normally be expected to resort to other remedial measures, the employer may so schedule the weekly rest day of his choice for at least two (2) days in a month.

SECTION 5. Schedule of rest day. — (a) Where the weekly rest is given to all employees simultaneously, the employer shall make known such rest period by means of a written notice posted conspicuously in the work place at least one week before it becomes effective.

(b) Where the rest period is not granted to all employees simultaneously and collectively, the employer shall make known to the employees their respective schedules of weekly rest through written notices posted conspicuously in the work place at least one week before they become effective.

SECTION 6. When work on rest day authorized. — An employer may require any of his employees to work on his scheduled rest day for the duration of the following emergencies and exceptional conditions:

(a) In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety;

(b) In case of urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer;

(c) In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures;

(d) To prevent serious loss of perishable goods;

(e) Where the nature of the work is such that the employees have to work continuously for seven (7) days in a week or more, as in the case of the crew members of a vessel to complete a voyage and in other similar cases; and

(f) When the work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.

No employee shall be required against his will to work on his scheduled rest day except under circumstances provided in this Section: Provided, However, that where an employee volunteers to work on his rest day under other circumstances, he shall express such desire in writing, subject to the provisions of Section 7 hereof regarding additional compensation.

SECTION 7. Compensation on rest day/Sunday/holiday. — (a) Except those employees referred to under Section 2, Rule I, Book Three, an employee who is made or permitted to work on his scheduled rest day shall be paid with an additional compensation of at least 30% of his regular wage. An employee shall be entitled to such additional compensation for work performed on a Sunday only when it is his established rest day.

(b) Where the nature of the work of the employee is such that he has no regular work days and no regular rest days can be scheduled, he shall be paid an additional compensation of at least 30% of his regular wage for work performed on Sundays and holidays.

(c) Work performed on any special holiday shall be paid with an additional compensation of at least 30% of the regular wage of the employees. Where such holiday work falls on the employee’s scheduled rest day, he shall be entitled to additional compensation of at least 50% of his regular wage.

(d) The payment of additional compensation for work performed on regular holiday shall be governed by Rule IV, Book Three, of these regulations.

(e) Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Section, the employer shall pay such higher rate.

Compressed Work Week (CWW)

Department Order No. 21-90/ DOLE Advisory No. 2- 09 and No. 02-04

Under this scheme, the number of workdays is reduced, but the number of work hours in a day is increased to more than eight (8), and work beyond eight hours a day is not subject to the overtime premium under a valid CWW scheme, unless a more favorable practice applies, provided work does not exceed 12 hours a day; work beyond 12 hours a day or 48 hours a week is subject to the overtime premium. Thus, a CWW scheme is an alternative arrangement wherein the normal workweek is reduced to less than six (6) days but the total number of normal work hours per week shall remain at 48 hours. (Azucena Vol. I, 9th ed., p. 265).

Conditions for implementation of the CWW (DOLE Department Advisory No. 02 Series of 2004)

• The scheme is expressly and voluntarily supported by majority of employees affected;
• In firms using substances, or operating in conditions that are hazardous to health, a certification is needed from an accredited safety organization or the firm’s safety committee that work beyond eight (8) hours is within the limits or levels of exposure set by DOLE’s occupational safety and health standards; and
• The DOLE Regional Office is duly notified.

Effects of a CWW Scheme:

• Unless there is a more favorable practice existing in the firm, work beyond eight (8) hours will not be compensable by overtime premium provided the total number of hours worked per day shall not exceed twelve (12) hours. In any case, any work performed beyond 12 hours a day or 48 hours a week shall be subject to overtime premium.
• Consistent with Articles 85 of the Labor Code, employees under a CWW scheme are entitled to meal periods of not less than sixty (60) minutes. Nothing herein shall impair the right of employees to rest days as well as to holiday pay, rest day pays or leaves in accordance with law or applicable collective bargaining agreement or company practice.
• Adoption of the CWW scheme shall in no case result in diminution of existing benefits. Reversion to the normal eight-hour workday shall not constitute a diminution of benefits. The reversion shall be considered a legitimate exercise of management prerogative, provided that the employer shall give the employees prior notice of such reversion within a reasonable period of time.