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No OT Pay for Drivers who are Field Personnel
26 October 2016
Are drivers entitled to overtime pay?
It depends on the status of the driver.
In summary, a driver who is not a field personnel is entitled to overtime pay. Conversely, a driver who is considered a field personnel is not entitled to overtime pay. A driver who is a househelper is not entitled to overtime pay.
Driver as ordinary employee
For provisions on Working Conditions such as overtime pay, Article 82 of the Labor Code limits coverage as to who may be entitled thereto, viz:
ART. 82. Coverage. – The provisions of this title [Working Conditions and Rest Periods] shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations. (Underscoring and emphasis supplied.)
Consequently, a driver who is an ordinary employee (and not a field personnel) is entitled to overtime pay as he is not one of those exempted.
In Far East Agricultural Supply v. Lebatique (G.R. No. 162813, 12 February 2007), the employee-driver filed a complaint seeking to paid overtime pay. As the complainant was not considered a field personnel, the employer was made liable to pay for the overtime pay. Thus:
As correctly found by the Court of Appeals, Lebatique is not a field personnel as defined above for the following reasons: (1) company drivers, including Lebatique, are directed to deliver the goods at a specified time and place; (2) they are not given the discretion to solicit, select and contact prospective clients; and (3) Far East issued a directive that company drivers should stay at the client’s premises during truck-ban hours which is from 5:00 to 9:00 a.m. and 5:00 to 9:00 p.m.14 Even petitioners admit that the drivers can report early in the morning, to make their deliveries, or in the afternoon, depending on the production of animal feeds.15 Drivers, like Lebatique, are under the control and supervision of management officers. Lebatique, therefore, is a regular employee whose tasks are usually necessary and desirable to the usual trade and business of the company. Thus, he is entitled to the benefits accorded to regular employees of Far East, including overtime pay and service incentive leave pay.
The key, then, is to determine the proper status of a driver to know whether overtime pay is due.
Driver as a field personnel
The rules are different if a driver is considered as a field personnel who is not under the supervision of the employer. Such employees are not entitled to overtime pay as stated above in Article 82.
Who is a field personnel?
Article 82 of the Labor Code defines a field personnel as follows:
“Field personnel” shall refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty. (Underscoring and emphasis supplied.)
The definition was expanded by the Supreme Court in the Lebatique case:
In Auto Bus Transport Systems, Inc. v. Bautista, this Court emphasized that the definition of a “field personnel” is not merely concerned with the location where the employee regularly performs his duties but also with the fact that the employee’s performance is unsupervised by the employer. We held that field personnel are those who regularly perform their duties away from the principal place of business of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty. Thus, in order to determine whether an employee is a field employee, it is also necessary to ascertain if actual hours of work in the field can be determined with reasonable certainty by the employer. In so doing, an inquiry must be made as to whether or not the employee’s time and performance are constantly supervised by the employer. (Citations omitted; Underscoring and emphasis supplied.)
If a driver is categorized as a field personnel who is not supervised by the employer and whose actual hours in the field cannot be determined with reasonable certainty by the employer, then such driver may be considered a field personnel. In that case, such driver is not entitled to overtime pay. These may apply to truck drivers or bus drivers provided those conditions are met.
Driver as househelper
Family or personal drivers may be considered either as domestic househelpers or persons in the personal service of another. Domestic househelpers are those who provide domestic or household service.
“Domestic or household service” shall mean service in the employer’s home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer’s household, including services of family drivers. (Par. 2, Article 139, Labor C0de)
Househelpers include family drivers, domestic servants, laundry women, yayas, gardeners, houseboys, and similar househelps (Apex Mining Company v. NLRC, G.R. No. 94951, 22 April 1991).
When considered as domestic househelpers, drivers are not entitled to overtime pay.
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