Labor Arbiter Orders a Micro Bar and Resto to Pay Minimum Wage Inspite Having Only 9 Employees

Posted July 30,2019 03:31:45

A small restaurant, despite being a Barangay Micro Business Enterprise (BMBE) which only employs less than ten (10) employees, was ordered by the Labor Arbiter to pay its cook with Salary Differential due to non-payment of minimum wage.


Under Republic Act (RA) No. 9178, a Barangay Micro Business Enterprise is exempted from the coverage of the minimum wage law. However, the exemption is not automatic and must be filed before the appropriate Regional Tripartite Wages and Productivity Board (RTWPB).


For a retail/service establishment to be exempted from the coverage of the minimum wage law, it must be shown that the establishment is regularly employing not more than ten (10) workers and had applied for exemptions with and as determined by the appropriate Regional Board in accordance with applicable rules and regulations issued by the National Wages and Productivity Commission.


In this case, respondent-restaurant failed to prove on record that he applied for and was granted an exemption. 


The Labor Arbiter further directed the respondent to pay complainant’s claim for the proportionate 13thMonth Pay and Night Shift Differentials in addition to the Salary Differentials and ECOLA. 


Presidential Decree (PD) 851 provides that all employers are required to pay their rank-and-file employees thirteenth month pay. Also, pursuant to the Omnibus Rules Implementing the Labor Code, Book III, Rule II, Section 2, an employee shall be paid night shift differentials of no less than ten percent (10%) of his regular wage for each hour of work performed between ten o’clock in the evening and six o’clock in the morning.


The complainant is not excluded from the coverage of said benefits insofar as only those retail and service establishments regularly employing not more than five (5) workers are the ones not covered.


Thus, the decision resolved that the respondent-restaurant shall pay its complainant-employee with salary differential and ECOLA, 13thmonth pay and night shift differentials subject to the three-year prescriptive period for money claims, amounting to P110,547,000.


The NLRC Labor Arbiter has exclusive jurisdiction over illegal dismissal, money claims, and other claims arising from both local and overseas employee-employer relationship, among others.


If no appeal is filed, the decision or order of the Labor Arbiter becomes final and executory after ten (10) calendar days from receipt of the Order.


Kath Bautista with reports from Josephine Gallenero/END