Dear PAO,
I am a regular employee but my employer does not give us service incentive leave. What shall we do?
Jun

Dear Jun,
Service incentive leave is a five-day leave with pay granted yearly to every employee who has rendered at least one year of service (Article 95, Labor Code of the Philippines). It shall apply to an employee who has been in service within 12 months, whether continuous or broken reckoned from the date he started working, including authorized absences and paid regular holidays unless the working days in the establishment, as a matter of practice or policy, or that provided in the employment contract is less than 12 months, in which case the said period shall be considered (Book 3, Rule 5, Section 3, Omnibus Rules Implementing the Labor Code). The service incentive leave shall be commutable to its money equivalent if not used or exhausted at the end of the year (Book 3, Rule 5, Sec. 5, id.).

The rule on service incentive leave, however, shall not apply to the following: 1) those of the government and any of its political subdivisions, including government-owned and controlled corporations; 2) domestic helpers and persons in the personal service of another; 3) managerial employees as defined in Book 3 of the Labor Code; 4) field personnel and other employees whose time and performance are not supervised by the employer; 5) those who are already enjoying the benefit herein provided; 6) those enjoying vacation leave with pay for at least five days; and 7) those employed in establishments regularly employing less than ten employees (Book 3, Rule 5, Sec. 1, id.).

If your employer is included in the aforementioned enumeration, he shall not be obliged to give you service incentive leave. On the other hand, if he is not included therein and yet, he failed to give you and your co-employees service incentive leave, you may institute a labor complaint against your employer before the National Labor Relations Commission.

We hope that we were able to answer your queries. Please be reminded that this advice is 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.