Part-time work is “a single, regular or voluntary form of employment with hours of work substantially shorter than those considered as normal in the establishment.”[1]

However, this definition does not cover and excludes certain types of employment arrangement even if they are termed as “part-time work” as they are in particular – irregular, temporary or intermittent employment, or cases where hours of work have been temporarily reduced for economic, technical or structural reasons. [2]

Part-time employment creates various problems or concerns for labor law. The following are just some of them:

1. How should their wages and statutory monetary benefits be computed?

2. Are they entitled to security of tenure?

3. Should there probation be up to six (6) months or twelve (12) months considering they are not rendering 8 hours of work?

4. Are they entitled to retirement pay?

Consequently, the Department of Labor and Employment (DOLE) issued an explanatory bulletin addressing key points.

DOLE Explanatory Bulletin on Part-Time Employment

In the DOLE takes note of the various forms of part-time work depending on the contractual agreement with the employer and the employee, particularly on the work hours and day or other reference periods.

However, the DOLE noted that there are two “most common and acceptable forms” for part-time employment:

1. Four hour work per day and weekend work; or

2. Two full days per week.

Thus, the DOLE-issued Explanatory Bulletin on Part-Time Employment is limited in its application and coverage to the above-two situations. It is not intended to cover other part-time work arrangements, particularly of teachers and of professionals whose service performance and compensation are not time-based.

On payment of wages and statutory monetary benefits

As the Labor Code benefits are generally based on the 8-hour workday schedule, the employer may pay “proportionately decrease the daily wage and wage-related benefits granted by law.” This presupposes that there is no contrary stipulation in the employment contract, company policy, CBA, requiring full payment for 8 hours a day despite a shorter work schedule.

The above rule applies the principle of fairness and equity, as well as the principle of “a fair day’s wage for a fair day’s labor.”

On security of tenure

Part-time employees enjoy security of tenure. [3]

As with full-time employees, part-time employees may only be terminated from employment after observance of due process. Due process termination requires the observance of substantive due process and procedural due process. Non-compliance with due process will result in illegal dismissal of a part-time employee.

Curiously, the Bulletin states that part-time employees are entitled to security of tenure only if they become regular employees. “Once they become regular employees, they are entitled to security of tenure under the law, and can only be separated for a just or authorized cause and after due process.”[4]

It is respectfully submitted that this is incorrect.

The principle of security of tenure enshrined in the 1987 Constitution applies to all employees – without exception. As a part-time employee is undoubtedly and without question an employee, then the principle of security of tenure likewise applies to such employee.

Further, it should be borne in mind that a part-time employee may be a regular despite the shorter working schedule. To be clear, a regular employee may be a full-time regular or a part-time regular. The Supreme Court no less has recognized such a situation.

In Perpetual Help Cooperative, Inc. v. Faburada,[5] it was held that a part-time employee may be a regular despite rendering less than the eight hours of work a day. “That [the employee] worked only on a part-time basis does not mean that he is a not a regular employee. Ones regularity of employment is not determined by the number of hours one works but by the nature and by the length of time one has been in that particular job.”

As the Bulletin was issued in 1996 and the Perpetual Help Cooperative case was promulgated in 2005, it is submitted that the said case law supersedes the Bulletin insofar as there may be inconsistencies.

On probationary employment

In the Bulletin, probationary employment for part-time employees may extend the prescribed six (6) months period to the extent that the total number of hours work would be equal to that of a full-time employee under probation.

The justification is anchored on the “intent of the law in allowing a probationary period prior to regularization.”[6] The employer’s main reason for insisting the 6-month probation is to test the employee’s fitness for employment during that time. Thus, the number of normal working days and hours within the probationary period should be observed. “For this reason, part-timers should become regular in status, after working for the total number of hours or days, which completes a six-month probationary period of a full-time worker in the same establishment doing the same job under normal circumstances.”[7]

It is respectfully submitted that this requires further qualification.

In view of the Perpetual Help Cooperative case, a part-time employee may undergo probationary employment to become either – a full-time regular employee or a part-time regular employee.

If the probation is for a full-time regular employment, the Bulletin may be correct in stating that the probationary period may be extended proportionately equivalent to the hours of a full-time probationary employee.

However, if the probation is for a part-time regular employment, it is submitted that the 6-month probationary period cannot be extended. The work hours for part-time probation is expected to be the same for part-time regular employment. There is, thus, no valid justification for extending the 6-month probationary period.

On Retirement Compensation

Part-time employees are entitled to retirement pay as with full-time employees.

To be entitled to retirement pay, the following conditions have to be met:

1. That there is no retirement plan between the employer and employee;

2. That the employee should have reached the age of 60 years old (optional) or 65 years old (mandatory); and

3. That the employee should have rendered at least five (5) years of service with the employer.

The retirement pay is computed at ½ month salary for every year of service following R.A. 7641. Unless otherwise agreed upon by the parties, the said “½ month” salary includes: (a) 15 days salary based on latest salary rate; (b) cash equivalent of the 5 days service incentive leave; and (c) 1/12 of 13th month pay.[8] As a result, the “½ month salary” is equivalent to 22.5 days.[9] COLA is not included in the computation. [10]

When applied to part-time employees, the above components for the ½ month pay “may likewise be computed at least in proportion to the salary and related benefit due them.”[11]

Miscellaneous

The Bulletin provided for the following miscellaneous provisions if only to provide for additional guidance.

Indications of regular employment

The Bulletin provides the following as indications of regular employments:

1. The terms of his employment show that he is engaged as regular or permanent employee;

2. The terms of his employment indicate that he is employed for an indefinite period;

3. He has been engaged for a probationary period and has continued in his employment even after the expiration of the probationary period; or

4. The employee performs activities which are usually necessary or desirable in the usual business or trade of the employer.

With the Perpetual Help Cooperative case, these indications of regular employment may no longer be applicable. There may be a regular employment of a full-time employee or a part-time employee.

On Non-Diminution of Benefits

The rule on non-diminution of benefits likewise applies to part-time employees.

The DOLE Bulletin specifically states that nothing therein should be construed as authorizing any withdrawal or diminution of any existing benefit granted to the part-time employee provided for by law, order, agreement and employer practice or policy.

Thus, any existing benefit that the part-time employee enjoys have to be honored by the employer who is bound thereto. The issuance of the Bulletin cannot be a ground for the withdrawal or diminution of such benefits.

*For comments or feedback: info@jdpconsulting.ph

References

[1] DOLE Explanatory Bulletin on Part-Time Employment, 02 January 1996. Accessible at http://bwc.dole.gov.ph/userfiles/file/Labor_Advisories/2015/EB%20on%20part%20time%20employment.pdf, last accessed 08 November 2015, 5:28PM. The definition of part-time work is borrowed by the Department of Labor and Employment (DOLE) from the International Labor Organization (ILO).

[2] Ibid. The definition of part-time work is borrowed by the Department of Labor and Employment (DOLE) from the International Labor Organization (ILO).

[3] 1987 CONSTITUTION. Par. 2, Sec. 3, Article XIII; Perpetual Help Cooperative, Inc. v. Faburada, G.R. No. 121948, 08 October 2001; DOLE Explanatory Bulletin on Part-Time Employment, 02 January 1996.

[4] Id at 2.

[5] G.R. No. 121948, 08 October 2001.

[6] Id at 2.

[7] Ibid.

[8] LABOR CODE. Paragraph 4, Article 301.

[9] Ibid, citing Capitol Wireless, Inc. v. Honorable Secretary Ma. Nieves R. Confessor, G.R. No. 117174, 13 November 1996.

[10] Handbook on Workers’ Statutory Monetary Benefits, 2014 edition, Bureau of Working Condition, Department of Labor and Employment (DOLE), Intramuros, Manila.

[11] Id at 2.