List of Cases

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]. Santos’ 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 compensation 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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Art.

86 – Night Shift Differential

NIGHT SHIFT DIFFERENTIAL NOT WAIVABLE

P491/8 hours = P61.38

4:00 p.m. to 10:00 pm is equivalent to 6 hours.

P491 less P10 (COLA) = P481.00

10 p.m. to 1:00 a.m. is equivalent to 3 hours

This is how night shift differential works in the Philippines

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