Basis The basis of the grant of Service Incentive Leave to qualified employees is found in Article 95 (Boo Three!

Title I" of the Labor #ode$ Section %! &ule '! Boo III of the (mnibus &ules contains the rules and regulations for the implementation this right$ Employees entitled to SIL )very employee (sub*ect to the e+ceptions belo," who has rendered at least one year of service is entitled to yearly service incentive leave of five days ,ith pay$
At least one year of service Meaning

The term -at least one.year service/ means service for not less than 0% months! ,hether continuous or bro en$ The 0%.month period shall be rec oned from the date the employee started ,or ing! including authori1ed absences and paid regular holidays$ 2o,ever! ,here the operation of the establishment as a matter of practice or policy! or that provided in the employment contract! is less than 0% months! such period shall be considered as one year$ Employees not covered The follo,ing employees are e+cluded from entitlement to SIL under the Labor #ode (but they may be entitled to the same or similar benefits if so provided under other la,s! or collective bargaining agreement or employment contract"3 0$ %$ 6$ 8$ Those of the government and any of its political subdivisions! including government. o,ned and controlled corporations4 5omestic helpers and persons in the personal service of another4 7anagerial employees as defined in Boo Three of the Labor #ode4 9ield personnel and other employees ,hose performance is unsupervised by the employerincluding those ,ho are engaged on tas or contract basis! purely commission basis! or those ,ho are paid a fi+ed amount for performing ,or irrespective of the time consumed in the performance thereof4 5$ :$ ;$ Those ,ho are already en*oying the benefit herein provided4 Those en*oying vacation leave ,ith pay of at least five days4 and Those employed in establishments regularly employing less than ten employees$ ((mnibus &ules" Manner of availment The service incentive leave may be used for sic and vacation leave purposes$ And! at the end of the year! the unused SIL may be commuted to cash$

Commutability to cash <nder the (mnibus &ules! the unused service incentive leave is commutable to its money equivalent at the end of the year$ =>$B$ >ot found in the L#$? Accumulation of Leave Credits Instead of using up SIL! the employee may accumulate it and opt for its commutation to cash upon his resignation or separation from employment$
Computation of SIL

In computing SIL! the basis shall be the salary rate at the date of commutation$ The availment and commutation of this benefit may be on a pro rata basis$ (5(L) 2andboo "
Illustration

An employee ,as hired on @anuary 0! 099;! and resigned on 7arch 0! 099A$ Assuming he has not used or commuted any of his SIL credits! he is entitled upon his resignation to the commutation of his accumulated SIL as follo,s3 SIL earned as of 5ec$ 60! 099; B 5 days Croportionate SIL for @an$ and 9eb$ 099A B (%D0%" + 5 days B E$A66 day Total as of 7arch 0! 099A B 5$A66 days Part time !or"ers Are part.time ,or ers entitled to the full five days SIL! or should the entitlement be on pro.rata basisF Cart.time ,or ers are entitled to full five days SIL$ (BG# Advisory (pinion" The reason is that the Labor #ode spea s of number of months ,or ed in a year! not number of hours ,or ed in a day! as basis for entitlement$ #acation and Sic" leave The Labor #ode treats vacation leave and sic leave under the same category as Service Incentive Leave or leave ,ith pay$ Thus! the grant of vacation or sic leave ,ith pay of at least five days may be credited as compliance ,ith SIL$ 9or e+ample! if a company is giving its employees 05 days vacation leave! five days of ,hich is ,ith pay! the five.days paid vacation leave may be credited as SIL$ Case 0$ Cetitioner #IT claimed that teachers are not entitled to SIL because they are engaged by the school on contractual basis$ The claim ,as not sustained$ It ,as held that the phrase -those ,ho are engaged on tas or contract basis/ as mentioned in the (mnibus &ules should be read

in relation to -field personnel/$ Teachers! not being field personnel! are entitled to SIL$ (#IT vs$ (ple! 09A;$" %$ Applying Article %90 of the Labor #ode in light of this peculiarity of the service incentive leave! ,e can conclude that the three (6".year prescriptive period commences! not at the end of the year ,hen the employee becomes entitled to the commutation of his service incentive leave! but from the time ,hen the employer refuses to pay its monetary equivalent after demand of commutation or upon termination of the employeeHs services! as the case may be$ (Auto Bus Transport! Inc$ vs$ Bautista! %EE5" 6$ CetitionerHs contention that respondent is not entitled to the grant of service incentive leave *ust because he ,as paid on purely commission basis is misplaced$ Ghat must be ascertained in order to resolve the issue of propriety of the grant of service incentive leave to respondent is ,hether or not he is a field personnel$ (Auto Bus Transport! Inc$ vs$ Bautista! %EE5" 8$ E$emptions% To claim e+emption from payment of service incentive leave pay! it is the employerHs duty to prove that it is covered under the e+emption$ Thus! ,here the employer claims that the employee is not entitled to service incentive leave pay inasmuch as establishment employing less than ten (0E" employees are e+empted from paying service incentive leave pay! it has the duty to prove that there ,ere less than ten employees in the company$ (#$ Clanas #ommercial! et al$ vs$ >L&#! I$&$ >o$ 088:09! >ovember 00! %EE5$"