This is one of the
controversies raised by the petitioners, and settled by the Court in the
affirmative—sales personnel are field personnel, thus, are not entitled to holiday
pay—in the below case.
Article 82 of the Labor
Code of the Philippines, or PD 442 provides:
Article 82. Coverage.
The provisions of this Title shall apply to employees in all establishments and
undertakings whether for profit or not, but not to government employees,
managerial employees, field personnel, members of the family of the employer
who are dependent on him for support, domestic helpers, persons in the personal
service of another, and workers who are paid by results as determined by the
Secretary of Labor in appropriate regulations.
As used herein,
"managerial employees" refer to those whose primary duty consists of
the management of the establishment in which they are employed or of a
department or subdivision thereof, and to other officers or members of the
managerial staff.
"Field
personnel" shall refer to non-agricultural employees who regularly perform
their duties away from the principal place of business or branch office of the
employer and whose actual hours of work in the field cannot be determined with
reasonable certainty.
In deciding the case, the
Court explained:
“The petitioner insists
that respondent's sales personnel are not field personnel under Article 82 of
the Labor Code. The respondent company controverts this assertion.
Under Article 82, field
personnel are not entitled to holiday pay. Said article defines field personnel
as "non-agritultural employees who regularly perform their duties away
from the principal place of business or branch office of the employer and whose
actual hours of work in the field cannot be determined with reasonable
certainty."
The controversy centers
on the interpretation of the clause "whose actual hours of work in the
field cannot be determined with reasonable certainty."
It is undisputed that
these sales personnel start their field work at 8:00 a.m. after having reported
to the office and come back to the office at 4:00 p.m. or 4:30 p.m. if they are
Makati-based.
The petitioner maintains
that the period between 8:00 a.m. to 4:00 or 4:30 p.m. comprises the sales
personnel's working hours which can be determined with reasonable certainty.
The Court does not
agree. The
law requires that the actual hours of work in the field be reasonably
ascertained. The company has no way of determining whether or not these sales
personnel, even if they report to the office before 8:00 a.m. prior to field
work and come back at 4:30 p.m, really spend the hours in between in actual
field work.
We concur with the
following disquisition by the respondent arbitrator:
The
requirement for the salesmen and other similarly situated employees to report
for work at the office at 8:00 a.m. and return at 4:00 or 4:30 p.m. is not
within the realm of work in the field as defined in the Code but an exercise of
purely management prerogative of providing administrative control over such
personnel. This does not in any manner provide a reasonable level of
determination on the actual field work of the employees which can be reasonably
ascertained. The theoretical analysis that salesmen and other
similarly-situated workers regularly report for work at 8:00 a.m. and return to
their home station at 4:00 or 4:30 p.m., creating the assumption that their
field work is supervised, is surface projection. Actual field work begins after
8:00 a.m., when the sales personnel follow their field itinerary,
and ends immediately before 4:00 or 4:30 p.m. when they report back to their
office. The period between 8:00 a.m. and 4:00 or 4:30 p.m. comprises their
hours of work in the field, the extent or scope and result of which are subject
to their individual capacity and industry and which "cannot be determined
with reasonable certainty." This is the reason why effective supervision
over field work of salesmen and medical representatives, truck drivers and
merchandisers is practically a physical impossibility. Consequently, they are
excluded from the ten holidays with pay award. (Rollo, pp. 36-37)
Moreover, the
requirement that "actual hours of work in the field cannot be determined
with reasonable certainty" must be read in conjunction with Rule IV, Book
III of the Implementing Rules which provides:
Rule
IV Holidays with Pay
Sec.
1. Coverage — This rule shall apply to all employees except:
xxx xxx xxx
(e)
Field personnel and other employees whose time and performance is
unsupervised by the employer . . . (Emphasis supplied)
While
contending that such rule added another element not found in the law (Rollo,
p. 13), the petitioner nevertheless attempted to show that its affected members
are not covered by the abovementioned rule. The petitioner asserts that the
company's sales personnel are strictly supervised as shown by the SOD
(Supervisor of the Day) schedule and the company circular dated March 15, 1984
(Annexes 2 and 3, Rollo, pp. 53-55).
Contrary to the
contention of the petitioner, the Court finds that the aforementioned rule did
not add another element to the Labor Code definition of field personnel. The
clause "whose time and performance is unsupervised by the employer"
did not amplify but merely interpreted and expounded the clause "whose
actual hours of work in the field cannot be determined with reasonable
certainty." The former clause is still within the scope and purview of
Article 82 which defines field personnel. Hence, in deciding whether or not an
employee's actual working hours in the field can be determined with reasonable
certainty, query must be made as to whether or not such employee's time and
performance is constantly supervised by the employer.
The SOD schedule
adverted to by the petitioner does not in the least signify that these sales
personnel's time and performance are supervised. The purpose of this schedule
is merely to ensure that the sales personnel are out of the office not later
than 8:00 a.m. and are back in the office not earlier than 4:00 p.m.
Likewise, the Court
fails to see how the company can monitor the number of actual hours spent in
field work by an employee through the imposition of sanctions on absenteeism
contained in the company circular of March 15, 1984.
The petitioner claims
that the fact that these sales personnel are given incentive bonus every
quarter based on their performance is proof that their actual hours of work in
the field can be determined with reasonable certainty.
The Court thinks otherwise.
The criteria for
granting incentive bonus are: (1) attaining or exceeding sales volume based on
sales target; (2) good collection performance; (3) proper compliance with good
market hygiene; (4) good merchandising work; (5) minimal market returns; and (6)
proper truck maintenance. (Rollo, p. 190).
The above criteria
indicate that these sales personnel are given incentive bonuses precisely
because of the difficulty in measuring their actual hours of field work. These
employees are evaluated by the result of their work and not by the actual hours
of field work which are hardly susceptible to determination.
In San Miguel
Brewery, Inc. v. Democratic Labor Organization (8
SCRA 613 [1963]), the Court had occasion to discuss the nature of the job of a
salesman. Citing the case of Jewel Tea Co. v. Williams, C.C.A.
Okla., 118 F. 2d 202, the Court stated:
The
reasons for excluding an outside salesman are fairly apparent. Such a salesman,
to a greater extent, works individually. There are no restrictions respecting
the time he shall work and he can earn as much or as little, within the range
of his ability, as his ambition dictates. In lieu of overtime he ordinarily
receives commissions as extra compensation. He works away from his employer's
place of business, is not subject to the personal supervision of his employer,
and his employer has no way of knowing the number of hours he works per day.
While in that case the
issue was whether or not salesmen were entitled to overtime pay, the same
rationale for their exclusion as field personnel from holiday pay benefits also
applies.”
Union of
Filipro Employees vs. Benigno Vivar, Jr., et al. G.R.
No. 79255 January 20, 1992
Read the full text of the case here.
is a delivery personnel (non-food) is not entitled in overtime pay..and in out of town like province with a minimum of 3 days in field not also entitled for overtime pay and night differecial?
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