“No work, no pay” Policy and the Special Holiday

Photo: shutterstock.com

Photo: shutterstock.com

Regularly, unless otherwise modified by law, the Philippine labor atmosphere observes three special non-working holidays in a year under Executive Order 292 as amended by Republic Act 9492:

  • Ninoy Aquino Day (August 21)
  • All Saints Day (November 1)
  • Last Day of the Year (December 31)

Rarely or even commonly, a president declares special holidays through proclamations. Then, there comes the “no work, no pay” policy employees should be aware of and employers should abide by this measure.

Although the Department of Labor and Employment shows determination by issuing memoranda on pay rules on holidays expecting employers to abide by the policy, yet, still, the Department shows a seemingly implicit expression or articulation on how this “no work, no pay” policy works.

Monthly basis vs. Daily basis

As the labor law distinguishes monthly-paid employees from the daily-paid employees, the former (monthly-paid employees) refers to those who are paid for every day of the month, including rest days, Sundays, regular holidays, or special holidays even if they do not work on these days. The latter (daily-paid employees) refers to those who are paid for the days they actually worked, except in cases of regular holidays where they are paid for the day even if they do not work, provided, that they are present or on leave of absence with pay on the working day immediately preceding the regular holiday.

What does the law provide on special holiday pay?

The law provides a “no work, no pay” policy during special holidays. However, should there be a favorable company policy or practice and a collective bargaining agreement effecting employees to be paid on special holidays even if they do not work on that days, then the no work, no pay policy takes no effect, technically. It must also be understood that with the existing favorable company policy or practice, both the daily- and the monthly-paid employees are benefited from this practice, unless the practice was withdrawn by the company or the practice itself expressly exempting either the daily- or the monthly-paid employees to be benefited from it.

What if a favorable company policy is withdrawn?

Ideally, a company as an organization should direct whatever changes of any policies–written or unwritten, from the higher line of command to the downlines. In effect,  a proper communication is maintained as a bedrock of what organization means.  However, in the sphere of labor laws, management discretion exists but with limits. As part of the process when a company asserts management discretion on issues affecting thereof, proper communication in various forms  still remains an ideal practice. The law defines it due process.

In big companies where collective bargaining agreement exists, a due process is also observed, may I say, strictly.

Conclusion

It can be observed that the law is not as articulate as what the working class are expecting on the “no work, no pay” policy during special holidays. However, it cannot be.  What the law says so is that this policy shall prevail during special holidays. The law is sufficient in defining this policy. History on the Labor Code can assert on this.

Since the law distinguishes clearly monthly-paid from daily-paid employees, then it is clear that the “no work, no pay” policy is intended to benefit the daily-paid employees and to be fair, as well.

The Philippine Official Gazette released a Q&A on payment of wages on regular and special days providing clarifications and pay rules employers should observe during holidays, either regular or special.  It pointed out clearly that

For a monthly-paid employee, no deduction should be made as he/she is considered paid all the days of the year, using the factor of 365 days a year. In case he/she rendered work on that day, he/she is only entitled to additional premium pay of 30%.

Above is the classic interpretation of what a monthly-paid employee shall receive during special holidays. Unless otherwise modified by law or nullified by the Supreme Court, the “no work, no pay” policy cannot be expanded to cover monthly-paid employees.

For proper pay rules and computation of wages during regular and special holidays you may check this post: Proper pay rules on holidays August 20, 21, and 27: DOLE urges private employers to observe the rules.

Philippine cybercrime law against freedom of expression: What matters most?

(Visual courtesy of: 1M Filipino Netizens Against the Cybercrime Law on Facebook, image retrieved from annalyn.net)

The Republic Act 10175 a.k.a. the “Cybercrime Prevention Act of 2012″, an act defining cybercrimes and providing penalties, investigation, or suppression and other purposes, has now come to take effect amidst various protests for either abolition or revision.

Freedom of expression is considered as the bedrock of democracy.  Democracy without it is either futile or farcical.  The 1987 Philippine Constitution protects and ensures the freedom of expression “somewhat” untouchable by upholding it in such a way that “there shall be no law passed abridging the freedom of expression”. But, is this meant to be absolute? No.

The Cybercrime law that has become infamous because it contained alleged defective provisions, which were considered either “too broad” or “too vague”, categorically deserved modifications or improvements. However, the purpose of such law remains reasonable, timely, and should be upheld. There is nothing in the particular law unconstitutional except for a specific, clearer definitions and identifications of what is libel all about when committed in various social networking sites or in the cyber space, generally, since the law doesn’t mention the specific definition and coverage instead of the broad definition of libel. Moreover, criminalizing libel is inconsistent to the International Covenant on Civil and Political Rights. Furthermore, to begin criminalizing libel is akin to start silencing people critical to the government and in the process is killing democracy, stubbornly!

Generally, the Constitution is frameworked in accordance to the common good or to serve the general welfare of the people.  With respect to the freedom of expression, the framer of the Constitution may categorically in their agreed understanding that this particular civil liberty shall be exercised to serve the common good of the people by promoting a healthy, constructive, free-flow of ideas. Thus, the provision generally insists the healthy free-flow of ideas or collectively called freedom of expression.  Ergo, this provision can never be absolute, thus, it can be regulated as circumstances may call it. For who among us could afford to let others trample on our rights and disrespect the sanctity of being human?  Nobody.

Apple vs. Samsung: Was the patent case unfair?

After the jury released their verdict for the patent infringement case, Apple Inc. vs. Samsung Electronics Co., Ltd.,  a Californian and a Korean company, respectively, in favor of Apple’s claim, most of us would wonder why and think about ways how this such crime — an intellectual copyrights violation in general — would affect everyone’s view about patent law.

Wikipedia defines that “the term patent usually refers to the right granted to anyone who invents any new, useful, and non-obvious process, machine, article of manufacture, or composition of matter.”

By contemplating this definition, this may suggest subjectivity on the matter in granting the right to anyone who invents a new, non-obvious process, or composition of matter. Why? Common sense speaks it so.

In the case of Apple vs. Samsung, where the former filed a suit against the latter charging of patent infringement of Apple’s products (alleged copying of features in iPhone and iPad), the district court’s jury of the Northern District Court of California unanimously cast a guilty verdict to  Samsung for its 17 products allegedly copied from Apple’s.  In doing so, the jury awarded Apple $1.05 billion in damages.

Meanwhile, a report from Reuters published by Yahoo! News said that “Seeking to capitalize on a major legal victory over its rival Samsung Electronics Ltd, Apple Inc has asked a federal court in a separate case to find that four additional Samsung products, including the Galaxy S III, infringe Apple’s patents.”

“Clearly, the evidence, to us, spoke overwhelmingly,” Hogan said in an interview for Bloomberg as published on phonearena.com. “There was no question about it.”

“In this country, intellectual property deserves to be protected,” he said. “If any company decides to ignore the stipulations and the rules and get too close that they cross the line and infringe and do it willfully — they need to understand if they take the risk and get caught, they should have to pay for it,”  the same media outfit reported.

However, iPhone India Blog reported that according to the Korea Times that “Executives at the [Samsung] company are ‘reeling in shock’ at the decision.” Furthermore, “Samsung is seeking to have Judge Lucy Koh overrule the jury’s decision before filing an official appeal while Apple is likely to seek a tripling of the damage award based on rulings that Samsung’s infringement was willful,” according to iPhone India Blog.

Finally, the Apple vs. Samsung case isn’t new in the business arena. It does prove to us that patent laws  are no longer helpful to the health of the business community, especially to the manufacturing companies, aren’t they? They categorically made the manufacturing business core competitive neither.

As we all know, competition sustains the equilibrium of business and the economy, besides the supply and the demand.  Issues on patent law are increasingly trending, and one of the most affected was competition.  Our common sense could argue with this.

Now may not be the right time to reconsider or revisit the laws on patent. But, with the trending issues of patent cases, competition is sacrificed.  We know that “free market” isn’t like this; it isn’t about crimes either. But what truly it proposes is the free-flow of products, ideas, and goods that will sustain the entire economy. Because of this, was patent law unfair to the “free market” principle that most economies in the world have lived by it?

As   puts it in his article “Apple vs. Samsung: The Longer View” published on businessweek.com,

Given how popular Samsung’s and other companies’ Android devices are with consumers, it’s unlikely that major telecom carriers would limit their selection of them in the wake of the San Jose verdict. And in the long term, the duel between Apple’s closed-garden operating system and Google’s open system (and between the iPhone and its many imitators) will be determined where it ought to be: At retail sales counters in the U.S. and around the world. In the court of capitalism, consumers are the ultimate jurors.

  1. Japanese court says Samsung did not infringe on Apple patent (androidauthority.com)
  2. Patent Law Needs Update in Age of Apple (bloomberg.com)
  3. Samsung V. Apple And The Obviousness Standard (techcrunch.com)
  4. Samsung To Sue Apple Over LTE Patents After New iPhone Announcement (redmondpie.com)
  5. Japanese Court Rules That Samsung Devices Do Not Infringe On Apple’s Utility Based Patents (uberinterest.wordpress.com)
  6. Apple patent claims stifling innovation; Japan court rules in favour of Samsung (rightways.wordpress.com)
  7. Samsung win: Patent violation case brought by Apple in Japan dismissed by judge (digitaltrends.com)

Suspending overtime pay for CIQ officers: Unlawful or unfaithful?

DOTC Secretary Mar Roxas issued a Letter of Intent suspending overtime payment charged to airlines management — a decade long tradition or practice. (File photo retrieved from: railpage.com.au. Original file from: inquirer)

Reportedly, the Philippine government through the Department of Transportation and Communications (DOTC) Secretary Mar Roxas has issued a Letter of Intent aimed at suspending overtime pays to Customs, Immigration, and Quarantine (CIQ) officers that the latter has been charging airlines management in decades.

It can be concluded based on the report of Philippine Star that the government initiative to suspend overtime pay was a dutiful response to the Board of Airline Representatives (BAR) inquiry addressed to the government to look into the possible corruption or malversation of public funds.

What is that again? Does it mean that BAR is only concerned for the possible corruption of public funds and thus motivated them to address their concern to the president?

Reportedly, according to Philippine Star,

BAR has complained of being required to shoulder the overtime pay of Customs, immigration and quarantine personnel at the Ninoy Aquino International Airport (NAIA).

In a recent statement, BAR said the overtime pay and other allowances airport customs personnel had demanded were unnecessary with the 24-hour, three-shift work schedule laid out during the time of Customs Commissioner Lito Alvarez.

The same daily reported last April 27, 2012 that Bayani Agabin, spokesperson for BAR, expressed that the complaint filed before the Ombudsman by the airport Customs examiners against their immediate superiors for alleged padding of overtime claims justified the “longstanding” suspicion of overcharging and abuse of overtime arrangement.

In several reports, BAR did not only complained once or twice about this what has become a “tradition” of charging overtime payments to them. Much for the Filipinos concern, BAR has opposed for this “tradition” over a decade!

What are they trying to say? Are they implying that they were already fed up by being a “milking cow” for over a decade?

In my point of view, conclusively, had BAR or airlines companies long been aiming at high return of investment (ROI) yet at low cost of production, which they had never realized ever in Philippine soil? Definitely, this is pure business. But, how about the social responsibility and accountability of private business entities toward the citizens of the country their businesses has either booming or failing at so far?

What might be the reason why DOTC suspended overtime payments?

In a report of the Daily Tribune, DOTC Secretary Manuel Roxas II, according to him, “BAR cited the government for coming up with a holistic and integrated solution to this concern which is a step toward improving the business climate for air transport in the Philippines.”

So, as that statement went, I would presume that Aquino administration was not only “obeying”, nor was the government “favoring” to the private corporations but also was taking a bold stride to providing service the best as it could!

In fact, after the DOTC has served the LOI advising suspension of overtime pay, BAR led by chairman Felix Cruz lauded the administration, according to him, for “its commitment to ensure the efficient delivery of CIQ services through a feedback mechanism between the BAR, the DOTC and the concerned government agencies,” the report said.

As far as my opinion is concerned, consistently, it can not be denied that while Aquino administration is giving an attentive ear to the private business sector, it, oftentimes, has turned a deaf, insensitive ear to the clamor of the masses, to the cry of the farmers,  and to the desperate call of the Filipinos for a decent living.

It was also reported that the government would only implement a 24/7 shift of operation to avoid overtime. So, by this, is it reasonable to suspend overtime payment charged to airlines company?

Was the government response to suspending overtime pay unlawful or unfaithful?

DOTC Secretary Mar Roxas, in a live interview on GMA News TV, remarked that CIQ officers were only “mulcting the airlines,” a local daily reported.

According to Manila Standard Today report,

Lawyer Floro Balato Jr., a senior immigration officer and group spokesman, slammed Roxas’ remarks as foul and insensitive, especially since the government withholds taxes on the overtime wages paid by airline companies.

Balato,  Jr., the report said, added that,

Our people manning the counters are highly trained and therefore need some respect from insensitive government officials.

The report, furthermore, said that according to Balato

Roxas should be more sensitive to some 105 contractual employees who were hired to augment the CIQ officers and stand to lose their jobs if Roxas continues to violate Commonwealth Act No. 613, or the Philippine Immigration Act, and the Tariff and Customs Code.

Moreover, the Supreme Court affirmed the legality of that provision of Commonwealth Act No. 613 in the consolidated case of Carbonilla v. Board of Airlines Representative (G.R. 193247) and Office of the President v. BAR (G.R. 194276).

Conclusion

The issue on whether the DOTC decision suspending overtime pay charging to airlines companies is unlawful or not, the following excerpt from the Philippine Supreme Court decision would suffice the legitimate and accurate claim of CIQ officers:

The overtime pay of BOC employees may be paid by any of the following: (1) all the taxpayers in the country; (2) the airline passengers; and (3) the airline companies which are expected to pass on the overtime pay to passengers. If the overtime pay is taken from all taxpayers, even those who do not travel abroad will shoulder the payment of the overtime pay. If the overtime pay is taken directly from the passengers or from the airline companies, only those who benefit from the overtime services will pay for the services rendered (Emphasis mine). Here, Congress deemed it proper that the payment of overtime services shall be shouldered by the “other persons served” by the BOC, that is, the airline companies (Emphasis added). This is a policy decision on the part of Congress that is within its discretion to determine. Such determination by Congress is not subject to judicial review.

Now, it is clear that although the objective of the government to improving the business climate for air transport in the Philippines is good, there could be no other objectives better than the objectives of the law and as best as the interest for the common good of the public.

Suspending overtime payments is not only UNLAWFUL (unlawful because it violates the Section 7-A of Coomonwealth Act No. 613 ) but also UNFAITHFUL to the interest of the Filipino people.

Furthermore, the government could only implement a modification such as a plan to improve services thru a 24/7 shift to avoid overtime.

However, it doesn’t mean that by implementing a 24/7 shift is suspending the lawful charging of overtime payment to the airlines companies thereby freeing the latter from lawful obligations sustained by the highest court of the land.

Now, should the government continue to set aside or disrespect what has been upheld or sustained by the Supreme Court, then, it matters that the executive rather is the highest branch of the government where all powers vested by the Constitution shall without further ado be solely exercised by the president, himself. Is that so?

Sources:

  1. ______________ . Airlines seeks Customs overtime padding probe. the Philippine Star. Updated April 27, 2012 12:00 A.M.
  2. _____________ . Common wealth Act No. 613. chanrobles.com
  3. Apolonio, Eric B. Roxas slams ‘mulcting’ workers. Manila Standard Today. August 18, 2012 12:02 A.M.
  4. Ching, Conrado. CIQ officers at Int’l airports hit DOTC over OT pay cut. the Daily Tribune. Friday, 17 August 2012 00:00
  5. Ronda, Rainier Allan and Santos, Rudy. DOTC lauded for suspending overtime pay of airport personnel. philstar.com. Updated August 14, 2012 12:00 A.M.
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