Dear PAO,
I have been working for a private company as an office assistant for almost three years. I work for eight hours a day, five days a week. Last month, I was absent from work for a day because of an urgent personal matter. On several other days, however, I rendered overtime work beyond my regular eight-hour schedule, accumulating a total of ten hours of overtime for the month. I believe that these overtime hours could be used to make up for the day I was absent from work. I requested that my employer simply offset my absence against my overtime hours instead of deducting the same from either my leave credits or salary. My employer refused and said that overtime work and absences must be treated separately. Can I legally offset my absence with the overtime work I rendered?
Kyla
Dear Kyla,
No, you may not legally offset your absence with the overtime work you rendered, regardless of the total overtime hours worked.
Article 88 of the Labor Code explicitly provides that “undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required in this Chapter.”
Save for valid compressed workweek arrangements, an undertime work cannot be offset by overtime work, as the off-setting would prejudice the worker, who would end up deprived of the additional pay for the overtime work he/she has rendered and which is utilized to offset his equivalent time off on regular workdays. (Romeo Lagatic v. National Labor Relations Commission, et al., GR 121004, Jan. 28, 1998, Ponente: Associate Justice Flerida Ruth Pineda-Romero). To demonstrate, allowing the offset would result in the loss of the additional 25 percent overtime premium pay that you are entitled to receive for work performed beyond eight hours in a regular working day. Thus, although it would seem that offsetting would merely balance your absence, you would actually receive less compensation for the month.
In other words, the employee’s statutory right to overtime pay cannot be waived or diminished when such waiver would result in compensation or benefits lower than those prescribed by the Labor Code. After all, Article 1700 of the New Civil Code explicitly provides that labor relations are imbued with public interest and labor contracts are subject to the protective provisions of labor laws. Consequently, any agreement or arrangement that effectively deprives an employee of overtime compensation mandated by law cannot prevail over the statutory protection afforded to the employee.
In this case, you were absent from work for one day but were able to render a total of ten hours of overtime work on several other working days. Applying the foregoing laws, your absence and overtime work you rendered must be treated separately. In other words, the overtime work you rendered cannot simply be used to cancel or offset the one day that you were not able to go to work.
Accordingly, your absence should be dealt with separately under your employer’s leave policy or applicable rules, while the overtime hours you actually rendered should be paid with the corresponding overtime premium. You should not be required, nor should you voluntarily agree, to surrender the statutory premium attached to your overtime work.
We hope that we were able to answer your queries. This advice was solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
