HR Talk: What are the 9 Legal and Valid Flexible Work Arrangements Available According to the DOLE Bureau of Working Conditions

Last August 24, 2020, the DOLE Bureau of Working Conditions held a Zoom Webinar on DOLE Issuances, Preserving Employment Through the Adoption of Flexible Work Arrangement.

dole

To spare you the 1-hour sit through of the webinar, here is the summary of the talk.

Queenie 1

Why is the Government Promoting the Adoption of Flexible Work Arrangement?

The government acknowledges that both the employer and employee have been suffering the effects of the COVID-19 pandemic. To prevent business closures, further unemployment, the government is encouraging the use of Flexible Work Arrangement (FWA). This allows the employee to still retain his ability to earn. Even if the money is not as big as it was originally, there’s still money coming in to sustain their families.

Exact words are: “Sa ilalim ng Flexible Work Arrangement, kumikita pa din po ang mangagawa. Maaaring hindi ito kasing laki ng orihinal na kinikitang sahod, ang mahalaga ay may pera pang pumapasok para matustusan ang kanilang mga pangangailangan.”

Here are the following DOLE Issuances that will help both businesses and workers throughout these tumultuous times:

DOLE Issuances

The latest is the DOLE Labor Advisory No. 17-A, Series of 2020 which include the RKS Form 5. The employer needs to fill in this form to inform DOLE of their application of Flexible Work Arrangement.

Labor Advisory No. 17-A

The RKS Form 5 is now available online via:  https://reports.dole.gov.ph/

There is also the earlier released Labor Advisory No. 17, Series of 2020 (Issued last May 16, 2020) that list down the types of Flexible Work Arrangement an employer can do to save jobs.

Labor Advisory 17

These are all the labor advisories and department orders that look into Flexible Work Arrangement for both employers and employees.

What are the Different Types of FWA on Offer?

Here are the types of Flexible Work Arrangement options on offer, all of which are legal and valid under the DOLE Labor Laws:

FWA Options

FWA Option 1: Telecommuting or Work From Home (17:35)

Question 1-A: Is WFH Mandatory?

No, it is NOT mandatory for the Employer to provide WFH opportunities.

WFH is one of the most popular FWA. We need to remember that under a Telecommuting arrangement, this must be VOLUNTARY for both employers and employees. This means that taking into consideration how their business operates, employer have the prerogative to offer a telecommuting arrangement for their company. They also have the option to deny such FWA if they don’t want to.

Telecommuting

Question 1-B: Can an Employee who wants a WFH Arrangement Demand It?

The answer is a yes or no.

A worker can PROPOSE that he WFH to his employer if possible. However, the employer does the right to deny it if it’s unworkable for the him. In the end, it’s still management prerogative. So yes, he can demand. But the employer has the right to say NO.

Question 1-C: What are the Guidelines for a Good WFH Arrangement?

Here are the three guidelines for a WFH Arrangement as per BWC:

Three guidelines

Under the telecommuting program, the company must make sure that their WFH Policy is WRITTEN and includes the following policies so that there’s no misunderstandings between the employer and the employee. Because once we get into a Telecommuting arrangement, the only thing that changes actually is the LOCATION OF WORK.

WFH 1

Employer and employee must agree on factors such as Eligibility, as some work cannot be a WFH. What are the standards a person must deliver? How long will the employer keep on the Telecommuting agreement?

Eligibility

Question 1-D: Should the Employer Automatically Pay for the Additional Expenses of WFH (e.g., Internet, Computer, Etc.)?

According to the law, it is NOT the employer who automatically pays for the internet or computer equipment of the employee if the employee is under a WFH arrangement. Such expense if ever paid for by the employer is still VOLUNTARY, meaning NOT MANDATED. Instead, it must be discussed between the two parties, and they have to AGREE on who will pay for it.

The Employer may offer to lend the computer or give some load allowance. But this is not mandatory.

Question 1-D: Are WFH Qualified for Holiday Pay?

Yes they are.

Regarding the Fair Treatment, WFH workers cannot be discriminated against. They should still receive fair  and comparable payment to those who are working on site. WFH workers are still entitled to holidays and rest days. If they work on a holiday, they must still be paid holiday pay. The Telecommuting Act also allows WFH employees can join a union if any.

Employers must still retain the rights and benefits of the workers despite the WFH arrangements. Pay should not be less than the minimum standards offered by the law.

Fair treatment

Question 1-E: Can Employees Legally Protect their Data While Their Staff is on WFH?

Yes, so long as the conditions is written in the policy.

Despite doing a WFH arrangement, it is the responsibility of the employer to protect the data use of the WFH employee. DOLE-BWC understands that the employer’s confidential information may be placed at risk because of a WFH arrangement. Some employees may work in a coffee shop, at the beach or at their house, which does not have the sufficient security protocols that an office has.

That’s why employers must write in their agreement their policy on DATA PROTECTION and PRIVACY. It must be clear to the staff that even if he/she is still on WFH, he/she must still do what is necessary to protect his/her employer’s data. Or be penalized accordingly.

Data protection

The Telecommuting Act was institutionalized via the Republic Act 11165 and DOLE Department Order No. 202, Series of 2019. You can check the fine print of these two documents for more guidance.

FWA Option 2: Compressed Work Week (28:20)

This is how a Compressed Workweek is defined:

Compressed Work Week

Common for factories, a Compressed Workweek increases the number of hours worked per day without the payment of overtime. In a compressed workweek, the total number of hours must not change even after compression.

There is no overtime pay unless it exceeds 12 hours of work in a day because the understanding is that the work week was compressed.  This is because the hours worked is distributed fairly to the remaining days.

FWA Option 3: Transfer of Employees to Another Branch or Outlet (31:30)

A company has two branches — Branch A and B. Because of business losses, Branch A closed. Instead of outright termination, the employer can save the employment of the worker by transferring the employee from Branch A to Branch B.

Transfer of

FWA Option 4: Assignment of Employees to Another Function or Position in the Same or Other Branch or Outlet (32:55)

Employers can opt to change the function/role of the staff in order to preserve the job of his employees.

Assignment

For example, if Division A closed and Division B and C is still operational, those who are in Divisions A that is serving as an administrative staff can be transferred to be an accounting staff in Division B.  Same with the second example, the Cook can be made into a Service Crew so long as the Cook agrees to a transfer of roles. This is valid and legal.

FWA Option 5: Reduction of Normal Workdays and/or Hours (35:30)

If pre-COVID-19, the company is operating for 6 days per week, the company can opt to reduce it to 3 days or so. The company can also opt to reduce the number of hours to lower than 8 hours per day.

This is legal because at least the employee still has some income to sustain their families. This is to distribute the work to all employees so lahat ng tao, may kita pa din. Instead of closing the entire company and everyone is out of the job.

Reduction of normal

FWA Option 6: Rotation of Workers (37:19)

Employees can be rotated in shifts within the workweek, so that the work is distributed. Everyone will have the opportunity to earn. This once again is legal and valid.

Rotation

FWA Option 7: Partial Closure of Business (37:15)

The company can opt to close several departments and units. Only those who can’t operate are the ones who will be closed.

partia-

FWA Option 8: Forced Leave (38:30)

IMPORTANT: If company decided to do a one-month forced leave, employees must first utilize their leave credits if ANY during the forced leave period. These employees will be paid for their days of leave. In these example, employees 1 will get paid for 15 days, employee 2 for 10 days, and so on.

forced leave

FWA Option 9: Broken Time Schedule (39:52)

This is commonly done with restaurants as some will op to only operate during peak hours. After the peak hours, the work is stopped but work is extended throughout the day. See definition below:

broken tme

If this is the FWA that’s chosen, an employee during the in-between time (11am to 3pm), the employee can do whatever he wants. He can go home, go to the mall, and do his personal errands because the 11:00am to 3:00 pm are not compensable hours. If he is given work, then his rest time should be compensable.

In Summary – Effects on Compensation

Effects

The general rule is No work No Pay unless there’s a more favorable CBA in the company. If there’s any leave credits left, the employee can convert the leave credits for pay.

There should not be any diminution of benefits. Reduction is proportion to the days worked. For example, whereas before, the employee came in for 6 days at Php 30,000 pay, if he only comes in for 3 days, pay is reduced to Php 15,000 only. In the same vein, if he is paid Php 800.00 per day for 8 hours of work per day, he is only paid Php 400.00 per day if his work is now reduced to 4 hours per day due to the Flexible Work Arrangement adopted by the company.

IMPORTANT: Employers must inform the DOLE Regional Offices of their chosen and agreed Flexible Work Arrangement before adoption.

This RKS Form 5 is once again available online: https://reports.dole.gov.ph/

Notice

Notice2

If there’s any misunderstandings, the FIRST LEVEL is to first go to HR and complain to the company. If this was not settled via the HR, the staff can THEN PROCEED to DOLE Regional or Field Office via the SENA system. Only if it’s not resolved that the staff will go to NLRC to resolve any issues.

Administration

To recap, here are the Nine (9) Flexible Work Arrangement Available:

FWA Options

WFH is voluntary and employer has prerogative. If WFH, it cannot go below the law’s minimum standards.

Compressed workweek: Not automatic to have overtime beyond 8 hours. Only if the work exceeds 12 hours that there’s overtime pay.

Hotline

Question and Answer Portion

  1. If Work from Home is due to the COVID-19 pandemic, dapat ba provided ng employer/company ang equipment?

    The law said that the employer and employee need to agree on what the employer needs to provide. If the employee expresses the wish of having a complete setup including ergonomic chair, this is -still dependent on whether the Employer agrees. If the employer does not agree,, then no.

  2. Is it okay if the branch does not have the same company name, can the employee be transferred to that branch (55:30)?

    It’s okay if both the employer and employee can agree to this setup temporarily, and there’s a written agreement.

  3. Can an employer implement an Telecommuting Program that is mandatory for the employee to follow (56:26)?

    Video then stopped at this mark, so the entire session ended.

Cut off

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4 thoughts on “HR Talk: What are the 9 Legal and Valid Flexible Work Arrangements Available According to the DOLE Bureau of Working Conditions

  1. Hi Tina,

    Thank you for sharing. I have some questions which I know are a bit outdated but entirely related to the article above. I’m hoping that you can provide the clarification that I had been looking for ever since the “pandemic” changed our country.

    1. Is the company’s adoption and implementation of a flexible working arrangement considered legal if no
    consulations were made to the affected employee/s?

    2. Can a company implement a flexible working arrangement scheme in the absence of an employee-employer
    agreement?

    3. Can an email correspondence detailing an employee’s FWA scheme and effectivity date (email does not have
    any option to accept or decline) serve as an employee-employer agreement?

    4. Section 1 of DOLE Dept Advisory No. 2, series of 2009 states that the adoption of a flexible working arrangement
    scheme should be anchored on voluntary basis and conditions mutually acceptable to both the employer and the
    employee. Are there any DOLE issuances which has superceded the above provision?

    5. Section 2 of DOLE Advisory No. 9, series of 2020 states the effectivity and implementation of any flexible work
    arrangement shall be temporary in nature, subject to the prevailing conditions of the company. The clause “subject
    to the prevailing conditions of the company” has gray paint sprayed all over it. Any related DOLE issuance/s
    containing provisions to a specific timeframe or duration in the implementation of a flexible working arrangement
    scheme?

    6. Is the company allowed to extend the implementation of any adopted flexible working arrangement scheme? And
    for how long can it be extended?

    Your insights and clarifications on the questions raised above will be highly appreciated.

    Please stay safe and ALWAYS BE SAFE.

    All the Best,
    Darell

    1. What type of contract do you have? What’s your role in the company and how long have you worked there? What type of FWA are they giving you and from when?

      And yes, FWA is renewable with staff’s approval.

      1. Hi Tina,

        Thank you for your swift response.

        I’m a regular employee of the company with an acting capacity as a Subject Matter Expert (floor support staff). It’s my 3rd year with the company this coming 25th.

        The initial email was sent to me last March 25, 2020 informing me that effective April 1, 2020 I’ll be working on a shortened workweek, 2 days of which will be paid and the remaining 3 days will be treated as “Leave Without Pay (LWOP)” regardless of accrued leave credits. A subsequent email was sent the next day changing the effectivity date to April 2, 2020. Other employees that I know of received a 6-month “Leave Without Pay” notice with effectivity date of April 25, 2020.

        A 6-month extension of the adopted FWA was announced last September 11, 2020 via online townhall meeting conducted by the Site Director along with our HR Manager. However, there was no mention of any date as to effectivity of the extension (best guess is before expiry of the initial implementation or around Oct 1 or 2, 2020).

        The meeting was initiated with the sole purpose of informing the employees of the company’s decision in the FWA extension as the introduction did not even last for 5 minutes and opened the forum for questions which lasted longer.

        All the Best,
        Darell

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