Cancelled Christmas

At eight in the morning, I just had a traditional Filipino breakfast of longsilog served with brewed coffee at a restaurant in Makati. At the other table is a group of young adults, male and female, being served with sizzling sisig, roasted pork liempo and a bucket of San Mig light beer. Too early for happy hour, you may say. But they are call center agents who just got off from work. Our night is their day, and our day is their night. I guess a bit of alcohol in the morning also helps them get to sleep with the sun up. It depends on the time zone of the client they are servicing.

The environment has changed. Our labor law was written before this change. Written before the business process outsourcing (BPO) industry turned normal sleeping hours into a continuation of the business day. Suddenly, the rest of the businesses supporting the BPO industry became 24/7 enterprises.

Labor rules, to be fair, have recognized new realities and kept up, not by legislation, but by interpreting old rigid laws as more flexible standards. The term “flexible labor standards” almost sounds like a rule with a lot of exceptions. But labor standards require rigidity to offer protection to labor. That is why as a general rule, even if an employee waives his rights in writing, via employment contract, such waiver would be invalid if that results to benefits below labor standards. For example, the practice of some employers not to give contractual employees over time pay or holiday premium is illegal, even if these hapless individuals agree to it in writing.

When then can labor standards be overcome by contract between employer and employee? When can the employee be bound to his contract when he says, “I waive my right and I won’t file a labor claim against you afterwards”?

The answer to these questions can only be guided by the mantle of protection provided to employer and employee alike by the Philippine Constitution. I cite two salient safeguards for our discussion today: (1) the employee is entitled to humane conditions of work, and (2) the government shall promote the principle of shared responsibility between workers and employers. In other words, new realities may require employees to cooperate with employers on new work arrangements to help the business succeed, so that their future can be secured—provided that such new work arrangements do not amount to inhumane work conditions.

Probably the first labor standard that had to be flexed due to new realities is the law prohibiting night work for women, between 10pm and 6am. If this was strictly implemented, the BPO industry, which thrives on serving foreign jurisdictions under different time zones, would not have been viable. But the safe office environment and availability of transportation make these arrangements encounter no issues with work conditions.

An interesting new work arrangement with more general application is the compressed workweek. The labor code sets work of 48 hours per week. But the labor standard is work in excess of eight hours is considered overtime with corresponding overtime pay. In a compressed work week, work for six days can be can be compressed into five days. So even if the employee works ten hours a day, he will not be entitled to overtime pay unless his total hours for the week exceeds 48 hours. And this has the blessings of the Department of Labor and Employment (DOLE).

An even more interesting scenario is work for one week compressed into four days. Theoretically, this also makes sense. With traffic as no laughing matter, many would prefer to wait it out until the heavy traffic eases before attempting to go home. That would convert that waiting time into productive time, not to mention cost of fuel, or transportation, and out-of-pocket expenses saved for one day less of work. No overtime can be charged in a compressed four-day work week unless the total work hours exceed the traditional regular hours for the week for the company.

Trading of rest day is allowed, even in the Code. Thus some employees would be working on Sundays regularly without premium pay, because their agreed rest day falls on a Tuesday. When they are required to work on a Tuesday, that is when they get premium pay.

A tricky situation still exists in respect of trading holidays. Different countries have different holidays, and a BPO or call center entity would continue to serve their clients because Philippine holidays are irrelevant to their clients. Can the BPO or call center agent therefore be required to switch holidays, and assume instead the holidays of the countries of the clients they are serving? On the principle of shared responsibility, the answer would be yes, but the DOLE cautions about diminution of benefits. So you cannot give less number of holidays to the agent than what is provided to Filipino employees in general. The question is, if they switch their holidays, is it okay not to pay them premium when they work on a Philippine holiday?

My own take on this is that we have to split the Philippine holidays into two groups, using as guidance the preservation of humane working conditions. Thus, I believe, certain holidays are based on very important and strong traditions that if you require employees to work on such holiday, even if they already traded that holiday for another day, they would still need to be paid premium for working. Christmas, December 31 and New Year, Maundy Thursday and Good Friday, and November 1—it is hard enough already to work on these days—while the rest of your family is having a reunion, or paying respect to their dear departed. Religious obligations are also very important such that even Muslim religious holidays are recognized by law. The nature of the industry, on the principle of shared responsibility, can expect certain employees to work even on these days, but at least they should be paid a premium. Otherwise, that may be considered inhumane condition. But the rest of the holidays pertaining to the death of our heroes, or other commemorative days, I believe can be traded and work without premium on these days is tolerable and would not be considered inhumane. For these days, it’s simply rescheduling a holiday, which is not too grim.

As it is the season, it is worth focusing on the holiday which is Christmas day. There are agents, newspaper people, persons manning 24/7 stores and gasoline stations who will fail to share the family noche buena, or the feel of a Christmas morning, I say their deeds and those similarly situated are no less than heroic. Imagine the festive air outside, with firecrackers and loud noise of cheers and hope while they are working inside, fighting the urge to be part of the celebration. They deserve a medal each year that they will not get. For cancelled Christmases, no flexible work arrangement can deprive the consolation prize of good and full premium pay.