Republic of the Philippines NATIONAL LABOR RELATIONS COMMISSION Regional Arbitration Branch No.

VIII Cabuyao City

Richelda A. Magrimbao, Complainant

-versus-

FRESHTEX PHILS , INC. , Respondent x---------------------------------------------x

POSITION PAPER

COMPLAINANT by the undersigned counsel and unto this Honorable Labor Arbitration office, most respectfully submits this position paper and aver the following to wit:

PREFATORY STATEMENT

The Complainant in this case is Richelda A. Magrimbao, of legal age, married, with post address at B-12 L-3A OMV-2 San isidro Cabuyao Laguna where he could be served with summons and other legal processes of this Honorable Court.

The Respondent in this case is FRESHTEX PHILS. INC, a garment factory owned by Mr. Nilo Galano, with a post address of Unit 314 ILO Land House #114 Integrity Avenue Carmelray Industrial Park, Canlubang Laguna.

STATEMENT OF FACTS

The respondent was a former employee of the complainant as a Sewer since June 26, 2012. For one year that the complainant worked with the

responded garment factory, only two (2) salaries for two pay payrolls were on time and the rest were delayed. When December 2012 came, the salary including the 13th month pay was given by installment, in five payments.

The complainant was forced to resigned in her own will in June 11, 2013 when her past salary for the month of May in 2012 were still not given and she could no longer provide for the needs of her children and considering that she is a widow. The medical allowance that the respondent promised to be refundable was also not given. The Complainants Sick leave and Vacation Leaves, that is, her service incentive leaves, that were not used by the complainant were not paid because the contention of the respondent company was that the complainant was not entitled, since there was no document signed by the latter proving that the complainant was already a regular employee. Considering that in the comp lainants one-year employment, she only had two absences. Complainant was also disappointed to discover that respondent was not remitting the payment for her SSS and PAGIBIG and only once for her PHILHEALTH.

The human resource department of the respondent company contacted the complainant informing her that a check amounting to P 10,933.80 as payment of her salary in the month of May is already available. However, I was told by a friend not to encash the check because there was no money to fund the check.

As a result, the complainant cannot continually work because of all the stress and anxiety that she is suffering in going back and forth to the respondent company, in following up the payment of her salary and other service incentive leave.

ISSUES 1. WHETHER OR NOT COMPLAINANT IS ENTITLED TO 13 TH MONTH PAY

2. WHETHER OR NOT THERE WAS NON PAYMENT OF SALARY IN THE MONTH OF MAY 2012

I Complainant is entitled to 13th month pay

Section 1 of Presidential Decree No. 851 as amended by Memorandum order no. 28 ( 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. All rank and file employees are entitled to a 13th month pay regardless of the amount of basic salary that they receive in a month if their employers are not otherwise exempted from the application of P.D. No. 851.

It is equivalent to one-twelfth (1/12) of the total basic salary earned by an employee within a calendar year. All rank-and-file employees, regardless of their designation or employment status and irrespective of the method by which their wages are paid, are entitled to this benefit, provided that they have worked for at least one month during the calendar year. If the employee worked for only a portion of the year, the 13th-month pay is computed pro rata.1

Non-compliance with this mandate cannot be excused by the simple expedient of pointing to the absence of a similar provision in the CBA for this would contravene the basic rule that an existing law enters into and forms part of a valid contract without the need for the parties to expressly make reference to it. Notwithstanding therefore the absence of any contractual agreement, the payment of a thirteenth month pay being a statutory grant, compliance with the same is mandatory and is deemed incorporated in the CBA.
2

In the case at bar, Complainant is entitled to the payment of 13th month pay. Regardless of the amount of her salary that she was receiving during her employment, as long as she worked for at least one month during the calendar year, 13th month pay must be paid.

central azucarera de tarlac v. central azucarera de tarlac labor union-nlu, G.R. No. 188949 , July 26, 2010
2

PAL V. ALPAP, G.R. No. 114280. July 26, 1996

II

Respondent is entitled to the payment of salary in the month of May

The following are some of the provisions in the labor code pertaining to wages: Article 97: Definition of terms xxxxxxxxxxxxxxx "Wage" paid to any employee shall mean the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered.

Art. 102. Forms of payment

No employer shall pay the wages of an employee by means of promissory notes, vouchers, coupons, tokens, tickets, chits, or any object other than legal tender, even when expressly requested by the employee. Payment of wages by check or money order shall be allowed when such manner of payment is customary on the date of effectivity of this Code, or is necessary because of special circumstances as specified in appropriate regulations to be issued by the Secretary of Labor and Employment or as stipulated in a collective bargaining agreement.

Art. 104. Place of payment.

Payment of wages shall be made at or near the place of undertaking, except as otherwise provided by such regulations as the Secretary of Labor and Employment may prescribe under conditions to ensure greater protection of wages.

ART. 116. Withholding of wages and kickbacks prohibited.

It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the workers consent

An employee or worker of an employer with employee-employer relationship is entitled to wages. For workers, wages are a primary source of income. Hence, it shall be unlawful for an employer not to pay wages and benefits of employees. It is likewise unlawful for an employee to withhold the any amount from wages of an employee without employees consent and approval.

In the case of the Complainant, nonpayment of her salary in the month of May is a clear violation of the labor code and of her Right as an employee. Wage is one of the reasons why a person works. Respondents act of withholding and not paying the salary of the respondent despite the latters persistent demands was clearly unlawful and unfair to the employee.