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  Art. 86  –  Night Shift Differential Every employee shall be paid a night shift differential of not less than ten percent (10%) of his regular wage for each hour of worked performed between ten o’clock in the evening and six o’clock in the morning.  Why? The reason is to compensate for the effects of working under the unusual hours.    The lack of sunlight tends to produce anemia and tuberculosis and to predispose to other ills.      Night work brings increased liability to eyestrain and accident.      Serious moral dangers also are likely to result from the necessity of travelling the street alone at night, and from the interference with normal home life.      Night work not only in the long run affects the health of the worker, but this deprives certain things that that make relatively pleasant life, like:   o   A full, uninterrupted rest and certain moments of solace leisure or spiritual and cultural expansion that might have after work in the evening and during the early evening hours.   o   Much of the inferiority of night work can doubtless be traced to the failure of the workers to secure proper rest and sleep, by day.   o   Because of the inability or lack of opportunity to sleep, night workers often spend days in performing domestic their duties, joining the family in the midday meal, ‘tinkering about the place’, watching the baseball game, attending the theater or taking a ride in the car.  NIGHT SHIFT DIFFERENTIAL NOT WAIVABLE Mercury Drug Co., Inc. vs. Nardo Dayao, et al., G.R. No. L-30452, September 30, 1982 —   The respondent court’s ruling on additional compensation for work done at night is not without evidence. Moreover, the petitioner-company did not deny that the private respondents rendered nighttime work. In fact, no additional evidence was necessary to prove that the private respondents were entitled to additional compensation, for whether or not they were entitled to the same is a question of law which the respondent court answered correctly. The “waiver rule” is not applicable in the case at bar. Additional compensation for nighttime work is founded on public policy, hence the same cannot be waived (Article 6, Civil Code). On this matter, we believe that the respondent court acted according to justice and equity and the substantial merits of the case, without regard to technicalities or legal forms and should be sustained.  BURDEN OF PROOF OF PAYMENT Who has the burden of proving a claim for night shift differential pay: the worker who claims not to have been paid night shift differential, or the employer who has custody of pertinent documents that can prove the fact of payment? Mr. Justice Bellosillo, speaking for the Supreme Court, provides the answer in National Semiconductor (HK) Distribution, Ltd. vs. NLRC and Santos, G.R. No. 123520, June 26, 1998. The fact that Santos [complainant employee] neglected to substantiate his claim for night shift differentials is not prejudicial to his cause. After all, the burden of proving payment rests on petitioner NSC [the employer]. Sant os’ allegation of non -payment of this benefit, to which he is by law entitled, is a negative allegation which need not be supported by evidence unless it is an essential part of his cause of action. It must be noted that his main cause of action is his illegal dismissal, and the claim for night shift differential is but an incident of the protest against such dismissal. Thus, the burden of proving that payment of such benefit has been made rests upon the party who will suffer if no evidence at all is presented by either party.  NOTE:  The following employees are NOT  entitled to the night shift differential pay: 1. Government employees 2. Those of retail and service establishments regularly employing not more than five (5) workers; 3. Domestic helpers and persons in the personal service of another; 4. Managerial employees; 5. Officers or members of a managerial staff; and 6. Field personnel and other employees whose time and performance are unsupervised by the employer. Sample computation: It must be emphasized that the Cost of Living Allowance (COLA) is NOT included in the night shift differential pay. For example, Joyce is a call center agent who works in Pasig City. She is paid a daily wage based on the minimum wage in the National Capital Region (NCR) which is P491.00 (this is the rate before 05 October 2017). It must be noted that the P491.00 minimum wage is broken down into P481.00 as basic wage and P10.00 COLA. If Joyce works from 4 p.m. to 1:00 a.m., she will be paid P505.32 for that day based on the following premises: 1. The actual work rendered by Joyce is 8 hours since the Labor Code mandates that an employee be given not less than 1 hour time-off for meals. This 1 hour meal break is NOT compensable.  2. Joyce’s hourly rate for the period of 4 p.m. to 10:00 p.m. is P61.38 based on the following:  P491/8 hours = P61.38 3. Hence, Joyce’s compensation for the period of 4 p.m. to 10:00 p.m. is P306.90 based on:  4:00 p.m. to 10:00 pm is equivalent to 6 hours. 6 hours less 1 hour meal break is 5 hours P61.38 (hourly rate) x 5 hours = P306.90 4. Joyce’s hourly rate for the period of 10 p.m. to 1:00 a.m. is P66.14 based on the following:  P491 less P10 (COLA) = P481.00 P481/8 hours = P60.13 P60.13 x 1.1 (night shift differential) = P66.14 5. Hence, Joyce’s compensation for the period of 10 p.m. to 1:00 a.m. is P306.90 based on: 10 p.m. to 1:00 a.m. is equivalent to 3 hours P66.14 (hourly rate) x 3 hours = P198.42 6. Joyce’s total compensati on for the entire workday is P505.32 (P306.90 + P198.42) This is how night shift differential works in the Philippines ** Note: The minimum wage rate of P491 is the rate before 05 October 2017. Starting 05 October 2017, the minimum wage rate in the National Capital Region is P512 per day. **  
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