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The rules on work during disasters and calamities – Atty JBJ

Source: DIRECT FROM THE LABOR FRONT By Atty Josephus Jimenez

For the past few days, Metro Manila and most of Luzon have become a virtual sea. The endless downpour brought unprecedented volume of water, reportedly worse than Ondoy, placing the National Capital Region and nine provinces under water. This national emergency put a halt to all industrial, commercial and agricultural activities. Factories, shops, schools and offices could not operate. Plane flights and sea voyages, of both domestic and international, were suspended and land transport vehicles could not operate since both the NLEX (North Luzon Expressway) and SLEX (South Luzon Expressway) and SCTEX (Subic, Clark & Tarlac Expressway) were flooded. Banks and stock exchanges were not operational either. Many lives perished. Millions worth of properties were inundated. Agricultural crops were lost. It has been a great disaster.

There are emergency work and services however that have to be done despite the weather disturbance. Malacañang came out with a Memorandum Circular No 33-A declaring no work in Metro Manila and the affected provinces. The BPO industries however took exception to the circular considering the nature of their operations. Thus, the Office of the President clarified that if there is a need to operate despite inclement weather, the employers should take responsibility for the safety and security of their workers, they should provide transport and pay them premium pay as provided by law and labor regulations. The DOLE issued, rather belatedly, a Labor Advisory on the matter.

Many questions, however, remained unanswered, as neither Malacañang’s Circular nor the DOLE’s Advisory, covered some basic issues such as: Can employers compel workers to work during disasters and calamities? If the employees refuse to do so, can they be held liable for insubordination? If they do work during such emergency situations, are they entitled to additional pay? If so, how much? If even labor lawyers, labor leaders and personnel managers, HR staff and entrepreneurs do not know these intricate questions of law, how much more the ordinary workers who are made to risk their lives and limbs in the height of these disasters and calamities.

Under Articles 89 and 92 of the Labor Code, employers may compel workers to render overtime work (work beyond eight hours a day) and to work on their rest day under extraordinary circumstances, such as, during national or local emergency, and when it is necessary to prevent loss of life or property, and in case of imminent danger to public safety, due to actual or impending emergency, caused by flood, typhoon, earthquake and other disasters. Under the law, overtime work is paid at the rate of 125 percent per hour based on the basic hourly rate of the worker. Work during the workers’ rest day shall be paid 130 percent of the workers’ basic hourly rate for the first 8 hours. Overtime pay on the workers’ rest day shall be paid an additional 30 percent of the 130 percent hourly rate.

The Supreme Court has decided that workers who refuse to render overtime shall be held guilty of willful disobedience to a lawful order given by a superior in relation to work. Under Article 282 of the Labor Code, insubordination is a just cause to terminate a worker’s employment. In the case of R. B. Michael Press (GR 153510, 13 Feb 2008), the worker’s unreasonable refusal to render overtime was held by the Supreme Court as a ground to dismiss an insubordinate worker. When the refusal to render overtime was done in concerted action by the union, in connection with an on-going CBA negotiation, the same may constitute a legal ground to declare that action as tantamount to illegal strike. In Interphil Laboratories (GR 142824 19 Dec 2001), Illegal strikes may justify the Court’s declaration of loss of employment status.

Cebu and the whole Visayas are very lucky to have been spared by the habagat that hit Luzon. But in the unlikely event that similar disasters and calamities should strike Central Visayas again, we should all be prepared. We are used to all these kinds of fortuitous events and force majeures. We should have already learned by now.