Dear PAO,
Since March 2017, I am employed as a Master Fisherman in a local shipping company in Cebu City. Recently, I signed a contract with our employer for a monthly salary of P30,000. In the said employment contract, I was directed to report from Monday to Saturday from 6 a.m. to 6 p.m. However, due to the nature of my job and lack of onboard staff, I often render services until 12 midnight or wee hours in the morning almost every day.
When I received my paycheck, I was paid the same amount as per contract. I inquired from the company manager if I can get any compensation for extra hours rendered on the job, but he said that I am only entitled to the salaries prescribed under my contract as I am not an employee. May I know if this is correct?
Aguinaldo
Dear Aguinaldo, The answer to your query depends upon the existence of an employer-employee relationship between you and your employer. Pertinent thereto, Department of Labor and Employment (DOLE) Department Order (D.O.) No. 156-16, series of 2016, issued on May 25, 2016, explicitly sets out the rules and regulations governing the employment of fishers in commercial fishing operations, particularly in terms of working relations and conditions of employment.
Section 4, Rule II of the DOLE D.O. No. 156-16 provides the guidelines in the determination of the existence of employer-employee relationship in commercial fishing operation, to wit: “Section 4. Employer-employee Relationship in Commercial Fishing Operation. – The existence of employer-employee relationship shall be determined by the four-fold test adopted by jurisprudence, to wit: “a. Selection and engagement of the employee; “b. Payment of wages; “c. Power of dismissal; and “d. Employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished.” Apart from the application of the four-fold test, the same Section also outlined other indicators of the employer-employee relationship, such as: “ (1) extent to which the services performed are an integral part of the employer’s business; (2) the extent of the worker’s investment in equipment and facilities; (3) the nature and degree of control exercised by the employer; (4) the worker’s opportunity for profit and loss; (5) the amount of initiative, skill, judgment or foresight required for the success of the claimed independent enterprise; (6) the permanency and duration of the relationship between the worker and the employer; or (7) the degree of dependency of the worker upon the employer for his/her continued employment within the fishing activity of the latter.” If the afore-mentioned parameters are satisfactorily met, then, there is an employer-employee relationship which entitles the latter to the minimum benefits prescribed under the Labor Code, and Section 3, Rule IV of the aforesaid Department Order, which grants “Overtime pay equivalent to at least twenty-five (25) percent of [an employee’s] basic wage on ordinary days and thirty (30) percent on regular holidays, special days, and rest days for work beyond eight hours per day,” as well as “[n]ight shift differential of ten percent of [the] basic wage for work performed between 10:00 p.m. and 6:00 a.m. of the following day,” among others.
Corollary thereto, if you have satisfied all the prerequisites and conditions of a regular employment, then you are entitled to the payment not only of your basic salary, but also other benefits such as overtime pay, premium pay, and other entitlements corresponding to the extra hours rendered in excess of your regular work schedule. In addition, you are entitled to night shift differential for your work rendered between 10 p.m. and 6 a.m. of the following day.
On the other hand, if the nature of your engagement as a fisherman unequivocally presupposed a contractual agreement, your benefits will be based on the terms indicated on the contract.
We hope that we were able to answer your queries. This advice was based solely 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
