Special advance Bar review

I read in the newspaper today that a tutorial center based in Cebu City is offering a Special Advance Bar Review from November 20, 2009 to January 31, 2010, every Friday, Saturday and Sunday. Featured lecturers are Dean Vincent Albano (Remedial Law, Civil Law, Political Law and Legal Ethics), Dean Eduardo Abella (Commercial Law), Dean Abelardo Estrada (Criminal Law), Prof. Benedict Guirey Kato (Labor Law) and Prof. Jason R. Barlis (Taxation Law).

The venue will be at the Richmond Plaza Hotel, F. Sotto Drive, Gorordo Avenue, Cebu City. Enrollment fee is P8,500.00 with 10% discount for those who will enroll on or before November 16. Contact numbers, in case you need further information, are (032) 267-7244, 0932-4837047.

If you know other advance review lectures, please share the information with us through the "comments" section.

I think advance review sessions are useful to those non-full-time law students or Bar reviewees who need to firm up or consolidate their knowledge of the law since they didn't have the luxury of focusing on their studies due to their main jobs or preoccupations. But this should only supplement, not substitute, the regular formal or self-review nearer to the Bar exam month. The mind remembers best that which is recently learned or observed.

Visit my Philippine Jurisprudence blog site

After a six-month hiatus, I'm back with updating this blog. I think I have already posted in this blog all necessary advices with regard to taking the Bar exams. If something comes up that I can share with law students and barristers, I'll post them here.

Lately, I want to focus more on providing digests of most recent jurisprudence. Except in some cases where I might write a full digest, mostly I will be posting basic principles of the cases and identifying what law subjects they fall under. This is to enable me to update my blog site regularly given my limited time. These digests can be found in my other related blog site: http://barops-philjuris.blogspot.com/.

I now work in a law office. So digesting jurisprudence benefits not only my readers (law students, barristers, lawyers) but most especially me because this is one way of keeping me up to date. If I have more time, I'll also digest classic and more recent landmark cases for the benefit of law students.

Good luck Compañeros!

Barops.blogspot.com

Entry #5 - Careless answer

I must remind myself every so often about what I had learned in high school math, never be careless and always be careful of a seemingly simple question, it can turn out to be tricky.

Here's probably an example in law, a question on legal ethics:

Q: May a lawyer represent a subsequent client in a case against a former client?

A careless answer: No. An attorney owes loyalty to his client not only in the case in which he has represented him but also after the relation of attorney and client has terminated.

In this question, I think what the examiner is looking for is the examinee's knowledge and understanding of the scope of the rule against representing conflicting interests. My ready answer is that an attorney can represent any client of his choosing as long as no conflict of interests or an appearance thereof arises.

Here's a proposed careful answer: Yes, as long as no conflict of interests or the appearance thereof arises from the representation. Identity of client, though an important consideration, is not sine qua non in the rule against representing conflicting interests. A lawyer is forbidden from representing a subsequent client against a former client only when the subject matter of the present controversy is related, directly or indirectly, to the subject matter of the previous litigation in which he appeared for the former client.

Otherwise, there is no confidential information that the lawyer can use to his unfair advantage against a former client in a totally unrelated case. However, prudence dictates that the lawyer should still inform his subsequent client about their adversary being his former client. He must avoid any suspicion of unfaithfulness or double-dealing in the performance of his duty."

The answer may be too long.

Entry #4 - Spine Technique

Today, I venture to call my discovery of sorts in the study of law as the "Spine Technique." (Try googling it, there's no such term yet, I think, relative to the study of law. But I believe it's not a novel technique; I just got it a new name.)

Spine is based on the belief that there is a general principle of law behind every provision or enumerated instances in rules, regulations and procedures. It's easier to understand and recall legal provisions if they are viewed as stemming out from a common branch or spine. Of course it's best if you can recall verbatim pertinent provisions. But the study and application of law is supposed to be a fulfilling and meaningful discipline, neither mechanical nor unnecessarily complex.

If you have time, always try to look for the Spine in every legal detail. It'll break the sometimes monotonous and cumbersome process of legal preparation and bring you closer to the essence of becoming a lawyer.

May elaborate on Spine if I have more time.

Entry #3

Still working on earning the 10.5 hours I committed myself to spend each day for the review. As of this passing midnight, I still have to earn two more hours. My concentration is still sharp at these hours so I'll continue (I'm on a 15-minute break) to study until 2:30am. Though I will slowly adjust my daily schedule to regular hours to fit into the bar exam schedule.

By this time I already know some of the threats that could detach me from my planned review schedule. Friends for instance suddenly call or text to ask for favors or a chit-chat meet-up, or I get to be offered some juicy projects for a quick buck. I know my priorities. Friends and love ones may never be able to understand the extent of the focus and effort required of a bar reviewee in order for him to fully prepare for the bar exam. Never mind them for now, I can just make amends later.

Entry #2

Sunday is rest day, though I spent 1.5 hours to read legal ethics reviewer. Tomorrow is the start of my scheduled review but I just tried to log in initial reading hours earlier because I have to finish some remaining business in the office.

I'm contemplating if I'll study at home or at a study center where I could interact with fellow law reviewees. Home entails no cost, except for little electricity, and the reading materials are readily available from my computer, the internet and mini-library. Also it saves time from traveling to and from the study center. Though I live alone in my pad, there are however occasional distractions, like my dog (a stress reliever though), neighbors, the sleep-inviting couch, TV, etc. Study center meanwhile guarantees complete silence, airconditioned comfort, ready food and interaction with fellow law reviewees in between breaks. But the cost is at least P800 per month. For the travel time, I can use it as a break in my environment so I won't feel this isolated in the long review period.

I'll look for a best suitable study center. I'll have home as study venue in the meantime.

Entry #1

Already spent 5 hours studying legal ethics. Stopped at page 20 of a 160-page reviewer. Too slow at 15 minutes per page so I had to reexamine my approach. I've decided to stop note-taking (since it is slowing me down) in favor of some mental rehearsal technique. Note-taking (summarizing, noting basic/important details) will come later during the evaluation day I have scheduled at the end of each week.

Here's one piece of advice I've read after I stopped studying to review my approach: Think first and read afterwards. If you have half an hour reading, spend ten minutes in reviewing your own knowledge and thought on the subject--even if you think you have none, you may engage in wondering about it--and then read for twenty minutes. It's from the book "Mind and Memory Training" by Ernest E. Wood.

Studying Remedial Law

It happened that after reading for comprehension and understanding the Rules of Court, I always ended up forgetting even the most basic rules of procedure. This is perhaps because Remedial Law is a very technical subject. You have to correlate the rules and not just read them by section. Also, you must have a skeletal or outline mastery of the Rules before even trying to deal with its complexities.

That is my new approach now and I hope it will work. I take a reviewer of Remedial Law (which already correlates the rules, though the sequence is still by rules) and then write in my elementary notebook (to simulate Bar exam writing and polish my penmanship) the basic principles, concepts and rationales in each rule. The goal is to acquire a fundamental working knowledge of the law such that when you are asked for advice by a layman, you can adequately respond and offer a cursory remedy to his legal problem pertaining to this subject.

This way I don't have to waste time reading and re-reading the rules and then forgetting them the next week. Once I've mastered the basic concepts and general rules, then I could easily tackle the exceptions and it technical complexities at the appropriate time. This should work for me and I hope for you too.

Effective Bar preparation methods

(Editor's Note: This was written in 2009. Please  make the proper adjustments for the 2012 format of the exams.)

How to prepare for the Bar; effective Bar review methods; how to top the Bar; easy ways to pass the Bar - there are many ways you can call it but there is only one goal: To obtain the license to practice law in the Philippines.

Here are some pertinent portions of Atty. Abelardo T. Domondon's lecture recently. These are what I took note of or interpreted/restated as accurately as I can. However there are still important portions that I skipped. For a complete discussion, you may buy his book "Effective Bar Review Methods" sold by Primus.

"Be a Bar topnotcher.

Challenges that Bar examinees may face: communication skills, handwriting, poor English, defective logic, carelessness, inadequate preparation.

There is no relation at all in the grades in law school and your chances to top the Bar.

Know your enemy.

New ball game each year. Also take note of new rules, like: designation of two examiners per subject.

Prepare your petition papers early. July is already a late period to prepare them.

You don't have to read all the cases. Read only the landmark cases.

Gather all the codals.

Pay attention to: knowledge, recollection, communication, and speed.

Be very careful in the afternoon because the alloted time is lesser.

Write fast. Write legibly. Three short sentences, except in enumerations and distinctions.

What is the impact of the two-examiner rule? The 3-sentence rule may no longer be applicable because the examiner will have more time to evaluate your booklet and analyze your answers.

Are you ready to review for the Bar? You need a plan, to determine your SWOT.

You only have 114 days left between April 20 to August 29, 2009.

You need a minimum of P50,000 for the review.

You only have a max of 7 reading hours a day.

Reading speed is 3 minutes per page including comprehension and understanding. There are 10,000 pages you have to read.

Need for speed. Test your speed (read his book on how to do this).

If you make it easy for the examiner to check your notebook, he'll repay you with a high grade.

Physical resources: Get a thorough physical exam, especially an eye exam. You would be putting your eyes to extreme strain during the review period.

Review materials: Better that you use your old books; they are like old friends.

Review supplies: I don't recommend yellowpads and reading from the computer. Use 5" x 8" index cards for your notes as they could easily be inserted and are portable. Audio recorders are a waste of time and money if you don't pay attention to the lecture because you're thinking that you're recording it anyway.

Financial resources: Save. Borrow. Beg. The bottomline: You should no longer worry about money because it will distract you from your review.

Review school: Look for the lecturers in choosing a good review school. Be aware of those brilliant or star lecturers who will just put you to sleep.

Sometimes, the daily review lectures can be a waste of time.

Stabilize your EQ.

Rest on Sunday.

Adhere to your daily review schedule as if your life depends on it.

Reading everything would lead you to perdition. Be selective on where to focus on. Because even if you read everything, you cannot remember them all.

You can recall if you need to, and if you want to. Have a strong motivation to remember.

You must limit the materials that you have to master.

It is motivation that allows you to concentrate.

Read one section at a time before marking.

Bring your book during lectures so that you can mark appropriate portions related to the lecture.

Have your own mock Bar exams.

Read the area covered by the lecture prior to the lecture.

Be well rested when you attend lectures. Otherwise, you'll end up sleeping in the comfortable, airconditioned environment of the lecture hall.

A wrap-up review will help.

Pre-week is for psychological preparations.

Exam Days: War zone is still in La Salle, not in UE as earlier rumored.

An answer is complete if it cannot anymore be subjected to the question "Why".

Always look at the rationale behind every law or provision.

It is always the fear of the unknown that is difficult to surmount. Kaya ninyo 'yan!"

Resort's "full-time nurses" not regular employees

According to a Sun.Star Cebu report on March 18, 2009, the Supreme Court has dismissed a labor case filed against Shangri-la’s Mactan Island Resort.

The five-star resort allegedly failed to grant regular employment status to two nurses despite years of service. The Court said that while the Labor Code requires companies to make available the services of a “full-time registered nurse” to its employees, it does not need to actually hire one.

In interpreting Article 157 of the Labor Code, the Court said that “the phrase ‘services of a full-time registered nurse’ should thus be taken to refer to the kind of services that the nurse will render in the company’s premises and to its employees, not the manner of his engagement.”

The nurses in this case accused the resort of violating the labor law by not giving them benefits due to regular employees. "They complained of underpayment of wages, non-payment of holiday pay, night shift differential and 13th month pay," Sun.Star reported.

Shangri-la’s management countered that the two were not resort employees but people hired by the resort's retained physician.

Arbitrators said there was an employer-employee relationship between the nurses and Shangri-la because the former performed work necessary and desirable to Shangri-la’s business; and that they observed clinic hours and rendered services only to Shangri-la’s guests and employees. Their salaries also passed through Shangri-la’s Human Resource Department and that in-house physician who hired them is also an employee.

A memorandum of agreement between the doctor and Shangri-la merely served to circumvent the doctor’s tenurial security and that of the employees under her, according to an earlier judgment.

Later at the Court of Appeals, it regarded the resort as "not principally engaged in the business of providing medical or health care services,” such that the nurses “could not be regarded as regular employees of Shangri-la.”

At the Supreme Court, the nurses raised two points: First, that the resort is required to hire a full-time registered nurse under Article 157 of the Labor Code; Second, whatever the effects of the MOA between the resident doctor and Shangri-la on the status of their employment is void because she isn’t a licensed sub-contractor.

But the Court held that the resident doctor is a legitimate independent contractor.

Here's the online copy of the case from the Supreme Court website: Jerome D. Escasinas, et al. Vs. Shangri-la's Mactan Island Resort, et al.

LGUs can tax mobile phone providers

Sharing you this news story from Sun.Star Cebu today, March 7, 2009:

LGUs can tax mobile phone providers

LOCAL government units (LGUs) that had trouble collecting franchise and business taxes from telecommunication firms in the past can run after the firms again for surcharges and interest.

The Supreme Court (SC) clarified this in a ruling that stemmed from a case involving Smart Communications in Iloilo City, but will have an impact on those cities or towns where Smart and other players, including Globe Telecom, operates.

Many local governments, including the Cebu City Government, had problems collecting business and franchise taxes from telecommunication companies because of a provision in the firms’ congressional franchises.

The congressional franchises say players only need to pay three percent of all gross receipts “in lieu of all taxes.”

The firms said their franchises were issued after the Local Government Code was enacted in 1991, giving cities,
municipalities and provinces tax powers. They argued the law must have intended to give them the exemption.

Section 23 of Republic Act 7925, or the Public Telecommunications Act, states that any exemption given to new players under the scheme to deregulate the telecommunications industry should also be given to the old ones.

This, the players argued, means all telecommunication players are exempt from local tax.

Pangasinan

Whether or not phone companies can be taxed was only resolved partially by the SC in the case of PLDT vs. Davao City in 2001 and in the February 2007 case of Digitel vs. Pangasinan.

In the PLDT vs. Davao case, justices said the term “exemption” in RA 7925 didn’t specifically refer to taxation but certain regulatory and reporting requirements.

In the more recent Digitel vs. Pangasinan, the justices said the “in lieu of all taxes” provision in the franchise “basically exempts firms from paying all other kinds of taxes for as long as it pays the three percent franchise tax.”

However, the ruling added, franchise taxes on telecommunications companies have been abolished by RA 7716 or the Expanded Value-Added Tax Law. The “in lieu of all taxes” clause in the legislative franchise has thus become inoperative.
The rulings of the SC did not deal with the surcharges and interest accrued over the original tax assessments.

Only “good faith and honest belief” justifies the non-collection of interest and surcharges on taxes, the SC clarified.

In the Smart vs. Iloilo case, the justices said, Smart Communications claims to have relied on good faith and the conclusion of the Bureau of Local Government and Finance (BLGF) when it first refused to pay the business and franchise taxes assessed by the city government.

However, the SC said, Smart should have known the BLGF does not have the power and authority to interpret the Tax Code, as this was clearly indicated in the 2001 ruling in PLDT vs. Davao.

So, the High Court said, the reliance was “misplaced.”

“The settled rule is that good faith and honest belief that one is not subject to tax on the basis of previous interpretation of government agencies tasked to implement the tax laws are sufficient justification to delete the imposition of surcharges and interest,” the Supreme Court’s 2nd Division ruling dated Feb. 27, 2009 said. (KNR)

That right-to-reply bill

It's not a law yet. But the right-to-reply bill now being cooked up in Congress clearly contravenes the Constitution.

According to this bill, whose main proponent in the Senate is, of all people, Sen. Nene Pimentel, "any person written or spoken about in the print or broadcast media in connection with any allegation of wrongdoing has the right to reply in the same space, time and prominence as the original imputation."

In other words, a media entity will be bound to print or broadcast an aggrieved party's reply to any allegation of wrongdoing -- in the same space, time and prominence as the original imputation!

Read what the Constitution states about freedom of the press: "No law shall be passed abridging the freedom of speech, of expression, or of the press." Freedom of speech also means freedom not to speak. Freedom of expression also means freedom not to express, write or publish. Freedom of the press means editorial freedom to determine both content and style.

The bill is now in its final stages of being passed. President Arroyo has vowed she would veto it. Media groups threaten to question the constitutionality of the measure before the Supreme Court if it ever ripens into law.

As one community newspaper has stated in its editorial: Why did it ever come to this point? It's obvious that the bill is fraught with dangers that threaten freedom of the press in an effort to appease "onion-skinned" politicians who accuse media of unfair treatment.

This again betrays our lawmakers' propensity to propose simpleton and knee-jerk solutions to problems they have not fully understood. Of course news media in the Philippines is far from perfect! But this will never justify the passage of a law that dictates how responsible journalism should be exercised.

The media is accountable to its readers -- the public -- and so are the politicians. If a journalist is perceived to be unfair, then let him be held accountable to his readers, not to any politician. This is how a mature democracy works.

Well the thing is, we have immature politicians. Exhibit A: the right-to-reply bill.

Riano's take on the Bar exam

In the Preface of his 2006 book "Evidence: A Restatement of the Bar," Dean Willard B. Riano gave an insightful view on how the Bar exam may be regarded.

"This work is anchored on the practical principle that a bar candidate does not have to know everything on each bar subject. It is not a requirement to pass the bar. It will never be. Also, the breadth and scope of bar examination topics yield to the conclusion that a profound knowledge of every nook and cranny of each bar principle is next to impossible."

I was planning to buy his two books on the rules of court last week but I was only able to get one on Evidence since the other one on Civil Procedure was out of stock. I highly recommend Dean Riano's books to law students and Bar reviewees.

Two-Examiner Rule in the Bar

Starting this year's Bar exam, there will now be two examiners per Bar subject.

On February 3, 2009, the Supreme Court in an En Banc Resolution established the two-examiner rule for the 2009 Bar examination and thereafter.

Herein quoted is the resolution of the Court contained in a letter by the Supreme Court Clerk of Court Ma. Luisa D. Villarama and was received by the Office of the Bar Confidant on February 6, 2009.

"Bar Matter No. 1161 - Re: Proposed Reforms in the Bar Examinations. - The Court Resolved, upon the recommendation of the Committee on Legal Education and Bar Matters, to APPROVE the proposal of Atty. Ma. Cristina B. Layusa, Deputy Clerk of Court and Bar Confidant, regarding the (1) implementation of Paragraph 4 Part B of Bar Matter No. 1161, or the designation of two (2) examiners per Bar subject; and (2) increase in the honorarium of the examiners from P130.00 to P200.00 per booklet."

"Hence, every Bar subject shall be divided into two (2) parts - Part I and Part II. Each examiner shall be assigned a specific scope from which to formulate his/her questions. The time alloted for each Bar subject of four (4) hours for the morning subjects and three (3) hours for the afternoon subjects shall not change. In answering the questions, the Bar examinees have the discretion in utilizing the time alloted for answering. Thus, they may opt to begin answering a particular part of the examination which he or she feels is relatively easier than others."

"As with previous Bar examinations, only one set of test questionnaire and one examination booklet for each Bar subject shall be given to each Bar examinee. Each examination booklet shall also be divided into two (2) parts, marked as Part I and Part II, where the answers are to be written corresponding to Part I and Part II of the questionnaire, respectively. A separate card for the grades or rating received by the Bar examinee for each part of the examination shall be attached to the front cover of the booklets marked as Part I and Part II. Upon review and correction of the two examiners' respective part of the examination, the attached card shall be detached immediately thereafter before transmittal to the other examiner for review and correction of the other part of the examination. This is to ensure that the other examiners would not be influenced by the grade or rating given by the other."

"In this connection, there shall be an increase in the honorarium of the Bar examiners from P130.00 to P200.00 per booklet per Bar subject or P100 per booklet per examiner."

Supreme Court makes it easier to annul marriages

Philippine Star
February 23, 2009

"A couple was freed from 13 years of conflict after the Supreme Court (SC) relaxed the guidelines for annulling marriages and declared their union void.

In granting Edward Kenneth Ngo Te’s petition to annul his marriage to Rowena Ong Gutierrez, the high court considered the psychiatric evaluation on the spouses.

Te was diagnosed to be suffering from “dependent personality disorder” while Gutierrez had “antisocial personality disorder.”

They were married on Oct. 23, 1996 and the SC noted the couple were “afflicted with grave, sever and incurable psychological incapacity,” as the SC stated in its ruling.

The SC said “psychological incapacity” as viewed under current jurisprudence is “totally inconsistent” with the way the concept was formulated under the Family Code.

Annulment of marriages, on the other hand, should not be limited to disorders as specified by the SC.

The SC had set the guidelines for courts to declare the nullity of marriages in the landmark case of Republic of the Philippines v. Court of Appeals and Molina.

“Far from what was intended by the Court, Molina has become a straitjacket, forcing all sizes to fit and be bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage,” the SC stated in the decision.

The SC said that in deciding cases of annulment of marriages subsequent to Molina, courts have applied the standards set in that case without regard to the Family Code’s clear intention that each case must be treated differently.

“Courts should interpret (Article 36 of the Family Code) on a case-to-case basis, guided by findings of experts and researches in psychological disciplines, and by decisions of Church Tribunals,” read the decision.

In the Te ruling, the SC adopted the separate opinion by the late Justice Teodoro Padilla in the Molina case for the judge to determine “psychological incapacity” in each case of annulment based on the facts at hand.

“The Court of Appeals must also avoid substituting its own judgment for that of the trial court,” read the decision, quoting the Padilla opinion.

The SC said the Molina case reflected the deluge of petitions for annulment of marriages and the Office of the Solicitor General’s description of Article 36 of the Family Code as the “most liberal divorce procedure in the world.”

“The intended consequence of Molina, however, has taken its toll on people who have to live with deviant behavior, moral insanity and sociopathic personality anomaly, which, like termites, consume little by little the very foundations of their families, our basic social institution,” read the decision.

In the Molina case, the SC made it hard for couples to have their marriages judicially declared void based on “psychological incapacity” as provided in Article 36 of the Family Code.

In declaring the Te marriage void, the SC has ruled that nullity of marriages based on “psychological incapacity” of either party should be handled on a “case-to-case basis,” not bound by the strict grounds specified in the Molina case.

However, the SC said it has not abandoned the Molina case.

“We simply declare that… there is a need to emphasize other perspectives as well which should govern the disposition of petitions for declaration of nullity under Article 36,” read the decision.

In Molina, the SC ruled that the burden of proof to show the nullity of the marriage belongs to the petitioner.

Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity, the SC added.

In Molina, the SC set out the following as the root cause of “psychological incapacity.”

Among them are grounds that are medically and clinically established, alleged in the complaint, and sufficiently proven by experts.

The decision must clearly state the grounds and the incapacity must be proven to have existed at the time of the marriage.

The SC said there must be evidence to show that the illness existed when the parties got married and the incapacity must also be shown to be medically or clinically permanent or incurable.

“Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolute against everyone of the same sex,” the SC said.

The SC stated the illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.

Mild character peculiarities, mood changes, occasional emotional outbursts cannot be accepted as root causes, the SC said.

“The illness must be shown as downright incapacity or inability, not refusal, neglect or difficulty, much less ill will,” the high court added.

Other root cause for incapacity must include:

• The essential marital obligations must be embraced by Article 68 up to 71 of the Family Code as regards the husband and wife, as well as Articles 220, 221 and 225 of the Family Code in regard to parents and their children;

• The non-compliance of these marital duties must be stated in the petition, proven by evidence and included in the decision;

• The interpretations of the National Appellate Matrimonial Tribunal of the Catholic Church of the Philippines, while not controlling, should be given great weight by the courts;

• The trial court must order the prosecuting attorney and the Solicitor General to appear as Counsel for the State;

• No decision should be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating his reasons for his agreement or opposition to the petition;

• The Solicitor General along with the prosecuting attorney shall submit the certification within 15 days from the date the case is deemed submitted for resolution by the court."

Labor standards issues in call centers

Call center agents are one of the higher paid workers in the Philippines today. Unfortunately, this enticement of higher pay has probably led some call center employers into thinking they could trifle with their employees’ rights and welfare.

With the employment crisis, there’s the practice of requiring employees to work on double shifts, say from 1 a.m. to 10 a.m. and then 8 p.m. the same day to 5 a.m. the next day. Some employees render overtime work without corresponding adjustments made in their salary to compensate for the extra working hours.

The following questions arise:

1. Is the second shift considered overtime work?

2. If yes, can the call center require employees to work in the second shift?

On the first question, yes the second shift should be considered overtime work and thus employees working in double shifts are entitled to corresponding overtime pay and night-shift differential. Normal hours of work shall not exceed 8 hours a day, says the law. Hours worked however do not include meal time if the employee is completely freed from duties during her meal period, which shall not be less than 1 hour. If the work performed exceeds 8 hours a day, the employee is entitled to overtime pay equal to her regular salary (compute the hourly rate) plus at least 25% thereof. When the employee is required or allowed to work between 10pm and 6am, she is entitled to a night-shift differential of not less than 10% of her regular wage for each hour of work performed within that time.

The law says a “day” is understood to be the 24-hour period which starts from the time the employee regularly starts to work. It is not necessarily the ordinary calendar day (like Monday, Tuesday, etc.). Thus, in the call center’s case, if the employee starts working from 1 a.m. to 10 a.m., the work day of such employee is from 1 a.m. to 1 a.m. the following day. In other words, the period from 1 a.m. to 10 a.m. is the regular working hours or shift of the employee while the period from 1 a.m. to 1 a.m. the following day is her work day. Any work in excess of 8 hours within that 24 hour period is considered as overtime work regardless of whether the work covers two calendar days (e.g. Monday-Tuesday).

So where the employee is required to work from 1 a.m. to 10 a.m. and come back 8 p.m. on the same day for the 8 p.m. to 5 a.m. second shift, the hours between 8 p.m. to 1 a.m. the following day is considered as overtime work for 5 hours (or 4 hours, subtracting the 1-hour meal period). Aside from overtime pay, the employee should also be paid a night-shift differential for work actually rendered between 10 p.m. to 5 a.m..

Now, the call center might claim that the employee’s overtime pay was already integrated in her basic salary which is way above the minimum wage. May the employer and employee agree that the latter’s regular salary already includes the overtime pay, such that when the employee actually works overtime she cannot claim overtime pay? No, unless there is an express agreement to that effect. Thus, first there must be a clear written agreement knowingly and freely entered into by the employee, and secondly, the mathematical result shows that the agreed legal wage rate and the overtime pay, computed separately, are equal to or higher than the separate amounts legally due. (Damasco vs. NLRC, G.R. 115755, as cited by Azucena).

On the second question: If the second shift is considered overtime work, can the call center require employees to work in the second shift? No, an employer cannot legally require his employee to render overtime work except in certain urgent cases stated in the law. In any case, the employee is always entitled to overtime pay if work exceeds 8 hours in a 24-hour period.

Notably, an employee may belatedly demand for unpaid extra compensation. Anytime she can file a claim for unpaid salary, benefits or overtime compensation for work rendered months or years back. The law recognizes that fear of losing one’s job is sometimes a very strong factor that gags the employee from demanding payment for such extra services and it may take her months or years before she could be made to present a claim against her employer. (Luzon Stevedoring vs. Luzon Marine Dept. Union, 101 Phil. 257, as cited by Azucena)