When can employers force employees to work 12 hours a day?

CWW Defined under DA No. 2, series of 2009: The Labor Code provides that the normal work hours per day shall be eight (8) hours. Work may be performed beyond eight hours a day provided the employee is paid for the overtime work. On the other hand, the normal number of workdays per week shall be six (6) days, or a total of forty-eight (48) hours based on the normal workday of eight (8) hours. This is without prejudice to firms whose normal workweek is five (5) days, or a total of forty (40) hours based on the normal workday of eight (8) hours.“Compressed Workweek” or “CWW” refers to a situation where the normal workweek is reduced to less than six (6) days but the total number of work-hours of forty-eight (48) hours per week remains. The normal workday is increased to more than eight (8) hours but not to exceed twelve (12) hours, without corresponding overtime premium. This concept can be adjusted accordingly in cases where the normal workweek of the firm is five (5) days.

Is CWW a Kind of Flexible Work Arrangement?: CWW is a kind of flexible work arrangement which is considered as better alternative to the outright termination of the services of the employees or the total closure of the establishment. Anchored on voluntary basis and conditions mutually acceptable to both the employer and the employees, it is recognized as beneficial in terms of reduction of business costs and helps in saving jobs while maintaining competitiveness and productivity in industries.

“Flexible work arrangements” refer to alternative arrangements or schedules other than the traditional or standard work hours, workdays and workweek. The effectivity and implementation of any of the flexible work arrangements should be temporary in nature.

What Are Other Forms of Flexible Work Arrangement?: Other than the CWW, the following are flexible work arrangements which may be considered, among others:

1. “Reduction of Workdays” refers to one where the normal workdays per week are reduced but should not last for more than six (6) months.
2. “Rotation of Workers” refers to one where the employees are rotated or alternately provided work within the workweek.
3. “Forced Leave” refers to one where the employees are requires to go on leave for several days or weeks utilizing their leave credits, if there are any.
4. “Broken-time schedule” refers to one where the work schedule is not continuous but the work-hours within the day or week remain.
5. “Flexi-holidays schedule” refers to one where the employees agree to avail of the holidays at some other days provided there is no diminution of existing benefits as a result of such arrangement.

Under these flexible work arrangements, the employers and the employees are encouraged to explore alternative schemes under any agreement and company policy or practice in order to cushion and mitigate the effect of the loss of income of the employees.

Conditions for Recognition of CWW: DOLE shall recognize CWW schemes adopted in accordance with the following:

1. The CWW scheme is undertaken as a result of an express and voluntary agreement of majority of the covered employees or their duly authorized representatives. This agreement may be expressed through collective bargaining or other legitimate workplace mechanisms of participation such as labor-management councils, employee assemblies or referenda.
2. In firms using substances, chemicals and processes or operating under conditions where there are airborne contaminants, human carcinogens or noise prolonged exposure to which may pose hazards to the employees’ health and safety, there must be a certification from an accredited health and safety organization or practitioner or from the firm’s safety committee that work beyond eight (8) hours is within the threshold limits or tolerable levels of exposure, as set in the Occupational Safety and Health Standards (OSHS) .
3. The employer shall notify the DOLE, through its Regional Office having jurisdiction over the workplace, of the adoption of the CWW scheme. The notice should be made in DOLE CWW Report Form.

What Are the Effects of CWW?: A CWW scheme which complies with the foregoing conditions shall have the following effects:

1. Unless there is a more favorable practice existing in the firm, work beyond eight (8) hours will not be compensable by overtime premium provided the total number of hours worked per day shall not exceed twelve (12) hours. In any case, any work performed beyond twelve (12) hours a day or forty-eight (48) hours a week shall be subject to overtime pay.
2. Consistent with Article 8515 of the Labor Code, employees under a CWW scheme are entitled to meal periods of not less than sixty (60) minutes. Nothing, however, shall impair the right of employees to rest days as well as to holiday pay, rest day pay or leaves in accordance with law or applicable CBA or company practice.
3. Adoption of the CWW scheme shall in no case result in diminution of existing benefits. Reversion to the normal eight-hour workday shall not constitute a diminution of benefits. The reversion shall be considered a legitimate exercise of management prerogative provided that the employer shall give the employees prior notice of such reversion within a reasonable period of time.

A case in point is Bisig Manggagawa sa Tryco v. NLRC,17 where private respondent Tryco and the petitioners signed separate Memorand[a] of Agreement (MOA) , providing for a compressed workweek schedule to be implemented in the company effective May 20, 1996. The MOA was entered into pursuant to DOLEDepartment Order (D.O. ) No. 21, Series of 1990 enunciating the Guidelines on the Implementation of Compressed Workweek.As provided in the MOA, 8:00 a.m. to 6:12 p.m. , from Monday to Friday, shall be considered as the regular working hours, and no overtime pay shall be due and payable to the employee for work rendered during those hours. The MOA specifically stated that the employee waives the right to claim overtime pay for work rendered after 5:00 p.m. until 6:12 p.m. from Monday to Friday considering that the compressed workweek schedule is adopted in lieu of the regular workweek schedule which also consists of forty-six (46) hours. However, should an employee be permitted or required to work beyond 6:12 p.m. , such employee shall be entitled to overtime pay.

Tryco informed the Bureau of Working Conditions (BWC) of the Department of Labor and Employment of the implementation of the said compressed workweek in the company.

In upholding the validity of the compressed workweek, it was noted that Department Order No. 21 sanctions the waiver of overtime pay in consideration of the benefits that the employees will derive from the adoption of a compressed workweek scheme, thus:

“The compressed workweek scheme was originally conceived for establishments wishing to save on energy costs, promote greater work efficiency and lower the rate of employee absenteeism, among others. Workers favor the scheme considering that it would mean savings on the increasing cost of transportation fares for at least one (1) day a week; savings on meal and snack expenses; longer weekends, or an additional 52 off-days a year, that can be devoted to rest, leisure, family responsibilities, studies and other personal matters, and that it will spare them for at least another day in a week from certain inconveniences that are the normal incidents of employment, such as commuting to and from the workplace, travel time spent, exposure to dust and motor vehicle fumes, dressing up for work, etc. Thus, under this scheme, the generally observed workweek of six (6) days is shortened to five (5) days but prolonging the working hours from Monday to Friday without the employer being obliged for pay overtime premium compensation for work performed in excess of eight (8) hours on weekdays, in exchange for the benefits above-cited that will accrue to the employees.”

In declaring the compressed workweek arrangement in the 2007 case of Linton Commercial Co. , Inc. v. Hellera,18 as unjustified and illegal and in holding that petitioners are guilty of illegal reduction of work hours, the Supreme Court found specious the petitioners attempt to justify their action by alleging that the company was suffering from financial losses owing to the Asian currency crisis. Petitioners’ claim of financial losses was not supported by evidence. A close examination of petitioners’ financial reports for 1997-1998 shows that while the company suffered a loss ofP3,645,422.00 in 1997, it retained a considerable amount of earnings and operating income. Clearly then, while Linton suffered from losses for that year, there remained enough earnings to sufficiently sustain its operations. In business, sustained operations in the black is the ideal but being in the red is a cruel reality. However, a year of financial losses would not warrant the immolation of the welfare of the employees which in this case was done through a reduced workweek that resulted in an unsettling diminution of the periodic pay for a protracted period. Permitting reduction of work and pay at the slightest indication of losses would be contrary to the State’s policy to afford protection to labor and provide full employment. All taken into account, the compressed workweek arrangement was unjustified and illegal. Thus, petitioners committed illegal reduction of work hours.”