6 February, 2020
On Jan. 12 — nearly half a century after its last eruption — Taal Volcano had a phreatic eruption, causing ash to fall on numerous cities and necessitating the evacuation of families living near the volcano. 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 for the same.
We hear it quite often: “Paano naman kami?” exclaims the working class. The suspension of work 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 continued 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.” Indeed, it would be inequitable to require an employer to pay the salary of an employee, even when the employee did not work on such day. L.A. No. 1-2020, however, provides that, in cases where an employee has accrued leave credits, then he may be allowed to utilize such leaves in order to receive compensation for the unworked days. Furthermore, if an employee works for the employer on such a 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 favorable company policy, practice, or stipulation in a Collective Bargaining Agreement (CBA). Any existing company policy, practice, or stipulation in a CBA, which is more favorable 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 favorable 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 its 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.
A couple of weeks had passed since the Taal Volcano’s initial eruption. While the Philippine Institute of Volcanology and Seismology has downgraded Taal Volcano’s status to Level 3, however, it has been 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.
For further information, please contact:
Karenina Isabel A. Lampa, Angara Abello Concepcion Regala & Cruz (ACCRALAW)
accra@accralaw.com
