13th month, holiday pay entitlements

Dear PAO,

I have been working for seven months now as an instructor in a language school in Cebu. I have no salary deductions for my Social Security System (SSS) and PhilHealth contributions, because of this my employer said that I am not entitled to 13th month pay.

I am not a regular employee and my contract does not state that I will be paid on holidays. Am I entitled to 13th month and holiday pays? Please help me.
Charity

Dear Charity,

Presidential Decree No. 851 requires all employers to pay their employees the 13th month pay not later than December 24 of every year. This benefit is granted to all rank-and-file employees regardless of the amount of basic salary that they receive in a month and 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 month during a calendar year. All employers are required to give a minimum 13th month pay of not less than one-twelfth of the total basic salary earned by the employee within the calendar year.

Those exempted from paying this benefit are: 1) the government and any of its political subdivisions, including government-owned and controlled corporations, except those corporations operating essentially as private subsidiaries of the government; 2) employers already paying their employees 13th month pay or more in a calendar year or its equivalent at the time of this issuance; 3) employers of household helpers and persons in the personal service of another in relation to such workers, and d) employers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing a specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case, the employer shall be covered by the 13th month pay law.

There is no showing that your employer is one of those exempted from paying 13th month benefit to its employees.

The fact that you are not being deducted of your SSS and PhilHealth contributions is not a justification for your employer’s nonpayment of 13th month benefit. In fact, your employer should be reprimanded or punished for its failure to pay and remit SSS and PhilHealth contributions of its employee as well as its compulsory contributions.

Regarding holiday pay, the Labor Code of the Philippines provides that every worker shall be paid his regular daily wage during regular holidays except 1) those of the government and any of its political subdivisions, including government-owned and -controlled corporations; 2) those of retail and service establishments regularly employing less than 10) workers; 3) domestic helpers and persons in the personal service of another; 4) managerial employees as defined in Book III of the Labor Code, and 5) field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.

Based on the above, you are not entitled to holiday pay only if you did not work on a particular holiday.
You should be paid if you have rendered service on such day. On the other hand, if your employment does not fall in any of those five instances mentioned, your employer should pay you on a regular holiday even if you did not work on said day and even if you are not a regular employee because the law does not distinguish as to the status of employment.

Moreover, if the holiday in question is a special non-working day, special public holiday, special national holiday, in addition to the three nationwide special days listed under Executive Order No. 203, and your employment is not one of those abovementioned, you are entitled to your daily rate plus 30 percent of your daily rate for the first eight hours of service rendered. But if you have not rendered service on such day, you will not be entitled to receive holiday pay, unless there is a favorable company policy, usual practice or collective bargaining agreement granting payment on these special days even if no work is performed.

Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net This e-mail address is being protected from spambots. You need JavaScript enabled to view it or via text message (key in: Times dearpao and send to 2299). –PERSIDA ACOSTA, Manila Times