I need legal advice po about my employment my current status are:
Work: massage therapist (taking the exam on dec)
-legitimate work not spacols
Compensation: commission basis
Time of work : 12pm-2am (mandatory) (14 hours)
Benefits: none even service incentive leave(SIL), (SSS, Philhealth was given an ID but nothing is being deposited by my employer)
Working days: 6 days per week
Status: contractual ( as i sign a contract for one year but is renewable)
Cash Bond: P5,000 (no clause of forfeiture was stipulated but is currently left at the discreation of the employer)
Work place: metro manila
Employer: cannot say publicly as i am afraid to be threatened to be dismissed
Duration of Employment: 1 year and 7 months
Upon hiring, i am compelled to pay a cash bond of P5,000.00, my employer just explains that it is for security purposes.
A brief background of my regular day is that first we are required to go to the spa and login by 12pm sharp otherwise we will be automatically be considered as late and pay a penalty of P50.00 and is considered absent if we came in after 5pm, thus, paying a penalty of P100.00, we handle our clients strictly based on the methods that our employer instructed on us, we are prohibited from deviating from such.
Then we handle our clients, we receive 30% as comission for the price of the massage. During 12pm-2am we are not given any lunch break (by this i mean we are not absolutely free to spend it because we may be interrupted by our employer at anytime to handle clients) there come a time when we were forced not to eat from 2pm - 11pm because we are required to handle our clients, we cannot refuse to handle because to do so would result into paying a penalty of 100 pesos, thus, we just made bear with it.
During the whole 12pm-2am, no overtimepay is paid to us and on legal and special holidays we are required to work with the same pay, refusing to go to work would result being considered as absent and pay the penalty thereof.
Another problem is with regard to my cash bond, Recently my boyfriend told me that he plans to visit his dead grand monther in the cementery in puerto gallera on november 1, to avoid congestion of passengers we left on october 30 and returned on november 2.
Now a memo was issued to me by my employer claiming that my cash bond was forefeited and has to pay P5,000 as my new cash bond, because my 3 days (october 30 was my day-off) absent is not based on a valid ground, thus, warranting the forfeiture of my cash bond, i am compelled to sign since i would not be allowed to handle would i have not signed. There are some of my co-workers who rarely
Please help me with my problem as i feel that my employer's act is apparently unlawful and supressive.
My legal perspective: (this is now the real author - currently a law student)
I think that the following is a clear violation of the Labor Code
1) non payment of overtimepay
2) non payment of SSS and observance of other rights such as (lunch break and SIL)
3) illegal cancellation of the cash bond as its sole ground rests upon the discreation of the employer
4) non observance of the legal holiday/other holiday rule on compensation
The strongest possible defense that i can come up with for the employer is that they will claim that my friend (referred to as A) was a contractual and a mere piece rate worker, thus, the rule governing wages does not apply based on the ground of:
1) written contract of employment for a limited time
2) remuneration is thru commission
However, i believe this contention does not hold water, the usual tests of the employee-employer relationship is the four-fold test or simply the control test, based on certain jurisprudence a piece rate worker is considered a regular employee due to the fact of control over the method and result of the work made during the supervision and instructions of the employer, remuneration is only a secondary source of such relationship.
I personally want to help my friend, as i am aspiring to be a lawyer and this is the reason as to why i want to be one to stop this agitating circumstances.
As i am a mere law student, i do not know yet as to how to initiate such action, the when and where to file, what to do and others, plus, i am not yet licensed to protect the interest of my friend, so i am humbly pleading for your help and seeking your aide and assistance
We really need a professional legal advice