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extending hours w/o OT pay compensates for undertime??

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micl0621


Arresto Menor
Good day! Let me give you a brief description of what had been happening in our company. There are times when we are asked to go to work 4 hours in a day due to repairs done on our system (business needs as they call it) , and then they will ask us to extend on some days, that means going beyond the 8 hr shift. so, we still work 5 days/ week but still 40hrs. Now my question is whether we are entitled for OT premium if we go beyond 8 hrs per day, and just pay us for the 4 hrs that we work for a specific day, bec that's the way i understand it from what i learned from the labor code. I asked them that question before and their answer was that we are just making up for the hours that we do not work for a specific day. Is that legal? because I am not satisfied with their answer. Can you please give me an answer and the basis for that? Thank you so much in advance...

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attyLLL


moderator
labor code expressly prohibits offsetting undertime with overtime. at the same time, if the undertime is not the employee's fault, he deserves to be paid in full.


ART. 87. Overtime work. - Work may be performed beyond eight (Cool hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twenty-five percent (25%) thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof.

ART. 88. Undertime not offset by overtime. - Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required in this Chapter.


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micl0621


Arresto Menor
Here is a sample clause that my manager gave me when i asked for an explanation as to why they are not paying us OT premium and is "obliging" us to make up for the hours that we cannot work due to downtime:

this is attached to the contract i signed

WORKING HOURS

You expressly acknowledge the 24x7 working hours of the Company as dictated by its business. You expressly agree: (a) that it is the prerogative of the Company to fix and change the work schedule and the rest days of all its employees, particularly (but not limited to) where exigencies so warrant (b) to work an 8-hour shift needed in 24x7 work schedule w/c may include evenings, weekends, holiday and graveyard shift (c) to work on a 5-day week, with a total of 40 working hours a week, w/ 2 rest days falling in any day of the week and not necessarily on weekends and successive: and (d) to work overtime or outside your monthly work schedule from time to time, particularly (but not limited to) where exigencies so warrant. However, in case you become pregnant, you are required to notify the HR Department so you can be relieved of any graveyard shifts work schedule.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

My company informs us a week ahead if there is any scheduled downtime so that we are aware that we need to extend on some days.

I have few more questions:

In the clause cited above it says "that it is the prerogative of the Company to fix and change the work schedule and the rest days of all its employees, particularly (but not limited to) where exigencies so warrant"

((sorry,for including the particular clause just now, you've already answered this question but I would like to know will this clause make any difference to your answers to these questions...

1) does this clause mean that they can "oblige" us to make up for the hours that we cannot work on some day/s?


2) we as employees follow what they are asking us to do for now. does this clause "imply" that they are not required to pay us OT premium and just consider those times as offset?

But if the answers are still the same even given this clause, are they legally liable to retrograde the OT premiums that we did not get???

Thank you again in advance, your advice really matters, there are more than 200 people impacted by this, and this has been going on for 2 years...Thank you... Bless you more!

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attyLLL


moderator
the clause is valid, but it cannot serve to justify working 4 hours one day and 12 on the next without payment of OT premium.

if you are determined, your remedy is to file a money claim with nlrc or complaint at dole. good luck.


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resjudicata


Arresto Mayor
Although employer and employee are allowed to enter into an employment contract, this right is not absolute, if it will undermine the constitutional and statutory rights of the laborers. The cardinal rule on hours of work is: it shall not exceed 8 hours a day. If the worker is allowed to work beyond the 8-hour period, he should be paid for the overtime work an additional compensation.

Although it is the prerogative of the company “to fix and change the work schedule of the workers”, it is subject to CBA and DOLE’s rules and regulations and the employers should respect the preference of employees as to their weekly rest days based on religious grounds.

The employer cannot oblige you to work on some other days to make up for days which you did not render work. The Labor Code permits only the offsetting of undertime work on the same day but not by overtime work on any other day.

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