By Karenina Isabel A Lampa, ACCRA Law
On January 12, 2020, the Taal volcano in the Philippines began erupting, causing numerous cities to experience ash fall and necessitating the evacuation of families living nearby. With the sudden turn of events, immediate evacuation and disaster preparations were necessary for the affected areas, and schools and offices were constrained to suspend their operations to make way.
“Paano naman kami? (How about us?)” exclaim the working class. The dilemma of work suspensions has always been an issue of concern, especially in cases where neither the employer nor the employee is at fault. Indeed, while the employer has a right to the continue operations of his or her business, an employee’s welfare likewise constitutes a pressing concern.
As if on cue, the Department of Labor and Employment (DOLE) issued the timely Labor Advisory No. 1, Series of 2020 (L.A. No. 1-2020), entitled “Suspension of Work in the Private Sector by Reason of Natural or Man-Made Calamity,” pursuant to Article 5 of the Labor Code and Republic Act No. 11058.
Section 1 of L.A. No. 1-2020 is clear in its mandate: “Except as provided for by law or appropriate proclamation, employers in the private sector shall, in the exercise of management prerogative and in coordination with the safety and health committee, or safety officer, or any other responsible company officer, suspend work to ensure the safety and health of their employees during natural or man-made calamity.”
In the event that employers in the private sector suspend work for the safety and health of their employees during natural or man-made calamities, they are not required to pay their employees’ salaries in accordance with the principle of “no work, no pay”. L.A. No. 1-2020, however, provides that, in cases where an employee has accrued leave credits, then he may be allowed to utilise such leave in order to receive compensation for the unworked days. Furthermore, if an employee works for the employer on such day, then the employee must receive his or her regular salary — without any additional or premium pay.
Notably, these rules apply only in the absence of a more favourable company policy, practice or stipulation in a Collective Bargaining Agreement (CBA). Any existing company policy, practice or stipulation in a CBA, which is more favourable to the employee, shall prevail over L.A. No. 1-2020. To illustrate, a company policy may provide that a premium be paid, on top of the daily wage, in case an employee works during a calamity. It is also possible that an employer has been unilaterally and unconditionally granting, for a long period of time, the payment of wages to employees even if work is suspended due to natural and/or man-made calamities. Thus, in these or other similar cases, there exists a policy or practice which is more favourable to the employee. Therefore, an employer may not invoke L.A. No. 1-2020 to justify non-payment of salaries during these work suspensions. Otherwise, the employer runs the risk of violating the rule on “non-diminution of benefits” in relation to Article 100 of the Labor Code.
With the above discussion, however, a question remains: in the absence of a declaration of suspension from employers in the private sector, are employees absolutely mandated to report for work during the existence of natural or man-made calamities? The DOLE answers in the negative.
Section 3 of the Labor Advisory provides that employees who either fail or refuse to report for work “by reason of imminent danger resulting from natural or man-made calamity” shall not be subjected to any administrative sanction. The DOLE aims to strike a balance in this case: while employers cannot arbitrarily sanction employees who fail to report for work in such cases, employees, on the other hand, are only excused from reporting for work “by reason of imminent danger resulting from natural or man-made calamity”. The meaning of this phrase, however, is not clear in the advisory. Furthermore, even if they report for work, they will not be entitled to any premium pay.
Several weeks have passed since the Taal volcano’s initial eruption. While the Philippine Institute of Volcanology and Seismology has downgraded its status to Level 3, it is quick to clarify that a hazardous eruption is still possible. With this looming threat, it is fortunate that the DOLE has issued L.A. No. 1-2020 to at least serve as a guide for employers and employees alike during these times.
______________________________
T: (63) 2 830 8000
______________________________
This article first appeared in Business World, a newspaper of general circulation in the Philippines.
The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes, and not offered as, and does not constitute, legal advice or legal opinion.
The author is an Associate of the Labor and Employment Department of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW). She may be contacted at kalampa@accralaw.com or (632) 8830-8000.