With the ongoing pandemic, many establishments have resorted to irregular operating hours which in turn created split work shifts for certain employees. For those who have been affected, many of them ask the validity of work shifts under Philippine Labor Law.
What is a split work shift?
Split work shifts (commonly called “split shifts”) refer to a workshift that is divided usually into two shifts (e.g. 4 hours for 1st shift, 4 hours for 2nd shift) with a substantial gap in between shifts (meaning: more than the 60-minute meal break).
In other countries, they have a specific law covering this arrangement and often provides for regulations on adopting such arrangement and/or adding benefits to covered employees.
As of writing, there is no specific laws in the Philippines covering splift shifts.
That being the case, is it legal for an employer to adopt split shifts?
Why do establishments adopt it
Before answering the question, it may be important to consider why an employer would adopt a split shift working arrangement.
While there are many possible reasons depending on the business, the primary and usual reason is that a specific work is needed on specific times of a day/night where there is an unusual volume of work. These specific times are separated with a lull time or when there is not much activity.
If you are wondering which industries apply split shifts, they are usually observed in restaurants, manufacturing, and hospitals, to name a few.
For instance, in restaurants, the bulk of customers usually come in during certain times of the day, such as lunch and dinner. Thus, a number of staff may be needed during lunch. However, after lunch and prior to dinner time, there is a 3-4 hour lull or dead-time when certain staff will not be engaged and thus not working. They will only resume working around dinner time when there is another surge of customers.
During the 3-4 hour lull or dead-time, the employer has no obligation to pay the employees. This is because of the labor law principle of no work, no pay.
The same also happens in certain establishments where there is an ebb and flow of work or volume of customers.
So, to go back to the question, is it legal?
Is it legal?
The answer is: It is not prohibited by PH Labor Law.
The employer has this bundle of rights called management prerogative. It is defined as the inherent right of an employer to regulate all aspects of employment, at its own discretion.
The phrase all aspects of employment include work shifts.
Due to the unique requirements and demands of every business, employers are given a wide freedom or latitude to decide on how to run their establishments. Whether the opening will start at 8:00 am or 8:00 pm, whether company uniform will be required or not, and whether you work on a team or alone, it is for the employer to decide.
From that discussion, it is obvious that split shifts come within the coverage of management prerogative. Simply put, if deemed by the employer as necessary to the business, then it is the prerogative of the employer to adopt or implement such a policy.
This is all well and good if the Company has been operating on split shifts from the start or has been practicing it for a long time that all employees who applied knew or were aware of it.
However, what if the establishment did not have a split shift and then later on adopted it?
This is where the two (2) limitations of management prerogative will come in.
If you have noticed, management prerogative is an all too-powerful right of the employer. Each and every aspect of employment may be regulated by the employer through company policies, regulations, and rules.
Because of this, and in order to avoid abuses by the employer, the Supreme Court imposed two (2) general limitations on the exercise of management prerogative:
1) It should be exercised in good faith; and,
2) It should be with due regard to the rights of employees.
Let’s discuss if the limitations would be breached in case the employer who previously did not adopt a split shift but later on decided to adopt it.
First, the change to split-shift should be in good faith. Meaning, the employer has a justification or legitimate reason for adopting a change to split-shift. Similar to what we discussed in our earlier example, there may have been a major change in the business such as increased volume of work on certain times of the day/night. Thus, to address it, a split-shift has been adopted. Note that this situation must be actual and duly proven, and not just speculative.
Second, the change to split-shift should be with due regard to the rights of employees. The employer should consider if there are certain employee rights that may be affected. The rights may be under labor laws or regulations, employment contract, Collective Bargaining Agreements (CBAs), or other employment agreements. This may come in the form of clauses or provisions wherein changes in workshifts or adoption to split-shifts may not be resorted to without the written consent of the employee. In some cases, particularly in a CBA, adoption to a split-shift may be stipulated to be totally prohibited.
For PH Labor Law, we have earlier stated that there is currently no law nor regulation covering split-shifts.
Thus, the usual objection comes via the employment contract. So, what if the employment contract provided for a work schedule such as 8:00 am to 5:00 pm? If it is worded in such a way as to indicate that work is limited to and only to that time, as in there are words to the effect that any change in work schedule will require the consent of the employee, then the employer has to get such consent of the employee. If it is generally worded to just indicate works schedule (as is usually found in many employment contracts), such provision may simply be considered as the starting work schedule of the employee when he/she joined the Company. Later on, the employer may exercise its management prerogative to change the work schedule or adopt a split-shift.
On a final note, the gap between the two shifts should be reasonable. Having a full 8-hour gap between two shifts does not adhere to the good faith requirement imposed on employers when they exercise management prerogative.
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