MY sister has been working for her employer in a private company for around three years already. Recently, she complained about her work. The reason is that her company informed her and the other employees that they will be getting only half of their 13th month salary for this year, and some of them will not be getting their v13th month pay at all because their company is allegedly exempted from the 13th Month Pay Law. Because of this, we want to know what kind of employers are exempted from giving the 13th month pay to their employees, and what kind of action should they do if they are not given their 13th month pay this year. Please advise us about this matter. Thanks!
According to Presidential Decree (PD) 851, as amended, also known as the “13th-Month Pay Law,” all employers are required to pay all their rank-and-file employees a 13th-month pay not later than December 24 of every year (Section 1, Ibid.).
The Revised Guidelines on the Implementation of the 13th Month Pay Law, however, exempts the following employers from the 13th Month Pay Law:
a) The government and any of its political subdivisions, including government-owned and -controlled corporations, except those corporations operating essentially as private subsidiaries of the government;
b) Employers already paying their employees 13th-month pay or more in a calendar year or its equivalent at the time of this issuance;
c) Employers of household helpers and persons in the personal service of another in relation to such workers;
d) Employers of those who are paid on purely commission, boundary or task basis, and those who are paid a fixed amount for the performance thereof, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall grant the required 13th-month pay to such workers.
As used herein, workers paid on piece-rate basis shall refer to those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same.
xxx.” (Revised Guidelines on the Implementation of the 13th-Month Pay Law)
Considering the above list of exempted employers from the 13th Month Pay Law, your sister can simply go over the list to confirm if her employer is among those given exemption by law. Otherwise, you sister is legally entitled to receive 13th-month pay, which should not even be less than 1/12 of her total basic salary earned within a calendar year (Ibid).
In case your sister’s employer is not among those exempted by the list and they still fail to pay their employees the required full 13th-month pay or, she may file a complaint against her employer for underpayment or non-payment of the 13th month pay before the National Labor Relations Commission (NLRC) which has jurisdiction to receive such complaint. (Art. 217, Labor Code of the Philippines)
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com.