with whom Mr. Chief Justice Negrón Fernández, Mr. Justice Belaval, and Mr. Justice Hernández Matos concur, dissenting opinion in part.
San Juan, Puerto Rico, March 15,1966
The appellant Caribbean Refining Co. is an enterprise in interstate commerce. Its production compels it to work 7 days a week and 24 hours a day. The workday is divided into three shifts of 8 hours each, the first from 11:00 P.M. to 7:00 A.M., the second from 7:00 A.M. to 3:00 P.M. and the third from 3:00 P.M. to 11:00 P.M. Up to January 11, 1956 the work program of appellant consisted of 5 consecutive working days and 2 consecutive days of rest. So far, this litigation would never have arisen. On January 11, 1956 the appellant abandoned the previous program and established one of six consecutive working days and 2 consecutive days of rest. Here arose the reason for the litigation, inasmuch as it may be easily seen that such' work and rest program thus integrated covers an 8-day period, that is, it exceeds the natural 7-day week into which time is divided.
On March 18, 1957 the appellant and its employees negotiated a collective agreement. Insofar as pertinent herein said agreement provided: (Art. IV) :
“(a) Workweek. — For employees who regularly work in the daytime the workweek shall consist of 168 consecutive hours beginning at 12:01 A.M. on Monday and ending at 12 noon the following Sunday.
“For those employees who work shifts, the workweek shall start at the beginning of that regularly fixed shift which starts on or before 12 noon on Sunday and ends the following Monday morning. Said workweek shall consist of 168 consecutive hours ending the following Sunday at the time of its beginning.
“(b) Working day. — The normal working day shall consist .of eight (8) hours of work during any period of twenty-four *340(24) consecutive hours.
“(d) Shifts. — Hereby, and until further notice from the Company, the following schedules shall be observed:
Said agreement stated that any overtime in excess of eight hours a day and of 40 hours in any week shall be compensated at time and a half and at double time any hour worked on the seventh consecutive working day.
In view of the transcendental consequences that, according to our records, are sought to be attached to this case, especially by the amid curiae who have joined forces with the appellant in support of the reversal of the judgment entered by the Superior Court which upheld the laborers in their claim on appeal; fearing the alleged adverse and disturbing effect attributed in the record to the judgment under review, if upheld, upon the industry in Puerto Rico, and, considering that in a great measure the question at issue here has been plucked from its limited range and carried to proportions it actually does not have in the discussion shown by the record of such issue together with the ever-present problem of the adequate adjustment between the local and the federal labor legislation in the controversies regarding wages — which problem in my opinion does not actually have much to do in the present controversy — it seems to me that it is necessary and appropriate to set forth the controversy in what it actually is, and that it be known what the issue involves and what it does not involve before the Court as it was adjudged. Let us see:
On July 29, 1958 a group of 58 laborers of the appellant, joined later by many more, filed a complaint alleging that *341the appellant had requested them to work in a rotating shift as set forth in a work program attached to the complaint, as to which there is no dispute. That on several occasions, following said work program, the complainants had been requested to work during six consecutive days a week without having been paid the overtime in excess of 40 hours a week, at time and a half. They also alleged that on countless occasions they had been requested to work on the day of rest and that said overtime was not compensated at double time. In its answer the appellant denied these facts although it admitted the existence of the work program attached to the complaint. It raised a series of affirmative defenses. The trial court held a hearing on the questions of law involved in the suit and received evidence regarding said questions of law. On September 18, 1959 it entered judgment.
The trial court decided, correctly,1 that by starting the workweek immediately after the day of rest, the week in an industry covered by the Federal Fair Labor Standards Act ends when the laborer has worked 40 hours; and if said 40 hours were worked in 8-hour periods daily, those worked after the fifth day would be overtime and the employer is required to pay them at time and a half pursuant to the Provided clause of § 5 of Act No. 379 of 1948. The court concluded, correctly, in the light of the evidence, that in appellant’s work program the 6 consecutive work days would fall only twice every 8 weeks within the workweek and that in its practical operation the workweek created by the defendant always consisted of six 8-hour days. In its judgment the court ordered the appellant to pay the amounts in arrears on the basis of compensating the hours worked during the sixth consecutive workday starting from the day immediately following the day of rest, at time and a half, and the hours worked by *342the complainants during the day of rest, seventh day, at double rate. Appellant was ordered to pay the amount of $35,733.37 for the compensation at time and a half for the sixth consecutive day of work; $12,962.89 for the seventh day or the day of rest worked concerning shift No. 1, less $3,578.89 to be deducted for compensation received, which makes a total of $45,117.37, in addition to the penalty imposed by law and attorney’s fees.
So as not to be further concerned' with it, I want to state right now that the complainants are not entitled to the extra compensation of $12,962.89 ordered by the court for work performed during the seventh day or day of rest, and in that aspect I agree with the opinion of the Court (Part III). To claim for work performed in the day of rest, the complainants divided the first shift from 11:00 P.M. to 7:00 A.M. in two different workdays, one covering the hour from 11:00 to 12:00 and another the remaining 7 hours. That is improper inasmuch as the 8-hour workday started at 11:00 P.M. and not at 12:00. I shall continue to state my opinion only with respect to compensation at time and a half for the sixth consecutive day of work.
Below is the workweek and the program established by the appellant and which is not in dispute:
*343A study of the preceding table which represents the workweek established by the appellant, as already stated, starting at 11:00 P.M. on Sunday and ending 168 hours after-wards (7 days of 24 hours each) at 11:00 P.M. of the following Sunday gives rise to several remarks and calls for several conclusions:
(1) Unlike the rest, the ninth week reproduces a situation identical with the first. The situation develops, therefore, in an 8-week cycle.
(2) In the first week of this cycle the sixth consecutive workday falls within a Sunday-to-Sunday range and, according to the evidence, extra pay was granted for said day.
(3) In the second week of the cycle the sixth consecutive workday falls on Saturday, within the Sunday-to-Sunday range and overtime was also paid for said day.
(4) In the third week of the cycle the sixth consecutive day of the work period falls out of the range of the Sunday-to-Sunday week and falls in the fourth week which follows, and said day merges or is identified with the first regular workday of the latter.
(5) In the fourth week of the cycle the sixth consecutive day of the work period falls in the fifth week which follows and merges or is identified with the second regular day of work of the latter.
(6) In the fifth week of the cycle the sixth consecutive workday in the work period falls in the sixth week which follows and merges or is identified with the third regular day of work of the latter.
(7) In the sixth week of the cycle the sixth consecutive day of work falls in the seventh week which follows and merges or is identified with the fourth regular day of work of the latter.
(8) In the seventh day of the cycle the sixth consecutive workday falls in the eighth week which follows and merges or is identified with the fifth regular workday of the latter.
*344It is an unquestionable fact and it was so testified by Mr. Eugene R. Cays, Vice-President of the company, that overtime was paid for the sixth day in weeks (1) and (2) but not in weeks (3), (4), (5), (6), (7) and (8). (Tr. Ev. 87, 88 et seq.) A study of the.table shows that, apparently, the Company did not consider itself bound to pay work at time and a half within the representative period of said 8 weeks, in addition to the overtime in the first two, inasmuch as there appear 40 hours a week. There lies what is. artificial of the situation in detriment to the worker.
The 40 hours weekly in the third to eighth weeks part from the premise, uncertain in this case, that the workweeks of the laborer started always on Sunday with the calendar week, and ended therewith. The unquestionable facts in the record show that such was not actually the case as of January 11, 1956 when the initial schedule of 5 consecutive days of work and two days of rest, 7 calendar days, was abandoned, and substituted by that of 6 consecutive workdays and two consecutive days of rest, 8 natural consecutive days.
The beginning of the workweek is marked by the return to work, irrespective of the day, to normal work after the preceding unit period of work and rest. In this case the workweek of the workers started when they returned to normal work after six consecutive workdays and two consecutive days of rest. It was inevitable, therefore, albeit very logical chronologically speaking, that the initial day of the week be moved each time under a schedule which covered 8 natural consecutive days of work and rest as a whole, and not seven. Notice in the chart how the first workday in the second week, after the rest, could not fall again on Sunday as in the first, but on Monday, and that of the third week does not start on Monday, but on Tuesday, and so forth. In a representative period of 8 weeks each workweek began on a different successive day. The incontrovertible facts show that that was the reality for the laborer, not the artificial position *345assumed by the appellant regarding the compensation, that every workweek started on a Sunday and ended next Sunday. The result of this unreal position is that there are workweeks which begin with rest instead of work (2nd and 3rd), or days of rest after only one workday (4th), or of 2, 3 and 4 days (5th, 6th and 7th), contrary to reality and its own schedule which established 6 consecutive workdays. Dividing thus artificially the workweek of the laborer for payroll purposes to make it appear as starting anew without having elapsed, every Sunday the sixth consecutive day actually and effectively worked in a week was represented as a regular workday of the following week. In this case the workday was not less than 8 hours (collective agreement) and therefore 5 consecutive days represented 40 hours of work. That being the case, the 6th consecutive day worked by the laborer constituted an excess of 40 hours.
Parting from the first week which started on Sunday, the undisputable evidence in the record, which is the chart, belies any pretense of the Company in the sense that the laborers did not always work 6 consecutive days — 8 hours in excess of 40 — before enjoying their rest periods before starting the next workweek all over again. During the lapse of time representative of 8 weeks, the chart shows as an un-disputable fact that every two months there were worked seven weeks or periods of 6 consecutive workdays or excess of 40 hours, and in 5 of said weeks the sixth day or excess of 40 hours was not compensated at time and a half under the artificial pattern of calendar week applied by the appellant.
Section 7 (a) of the Fair Labor Standards Act of Congress — 29 U.S.C.A. § 207 — provides that except as otherwise provided in this section, no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employ*346ment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
The federal Regulation of this Act, § 778.2 provides in its subsection (c) that an employee’s workweek is a fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods. (Italics ours.) “It need not coincide with the calendar week but may begin on any day and at any hour of the day.” (See, Ponce, aforecited.) “Once the beginning time of an employee’s workweek is established, it remains fixed regardless of the schedule of hours worked by him. The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements of the Act.”
Subsection (d) of the Regulation itself provides that each workweek stands alone; that the Act takes a single workweek as its standard and does not permit averaging of hours over two or more weeks, and that this is true regardless whether the employee works on a standard or swing-shift schedule.
I do not assume the position of holding that the swing-shift schedule established by the appellant was in violation of the Act and the federal regulation just for that fact alone. The problem does not lie in the swing-shift schedule. The problem lies in the fact that in each 168-hour period — 7 periods of 24 hours — which is the unit labor measure of the Fair Labor Standards Act, and independently of which day of the week those 168 hours began to elapse until completely expired to begin anew, the laborers worked 8 hours — a sixth day — in excess of 40, without, as provided by § 7, being compensated at time and a half, except on the two occasions in 8 weeks in which under the fictitious representation of *347the calendar week, the lapse of the 168 hours coincided with the lapse of the calendar week which coincidence the Regulation expressly provides need not exist.
The payment of wages on the basis of a fictitious workweek from Sunday to Sunday accomplished by the mechanism of artificially dividing the laborer’s actual consecutive 6-day workweek into different calendar workweeks was contrary to law and to the federal regulation which does not permit such separation. The Regulation takes every week or period of .168 consecutive hours alone, and separately, as the unit basis for determining the workweek in excess of 40 hours in each period worked. Otherwise, § 7 of the Act would be inoperative and its provision regarding overtime pay would be left •to the capricious distribution which an employer would make of the period worked, causing any excess of 40 hours to .disappear artificially, as in this case, in a basic period of 168 or a workweek.
Aside from the fact of whether or not the laborers asked for the swing-shifts,4 and I already stated the problem does not lie therein, nothing in the record shows that under the system of 6 days of work, instead of the former 5 days, they agreed to or accepted the manner already described to •compute their weekly wages. Any express or implied'waiver of the additional compensation provided by § 7 on the excess of 40 hours would be contrary to the public interest and invalid. In the collective agreement they agreed, on the contrary, that every hour in excess of 40 hours would be paid .at time and a half.
The Court observes that under the previous system, up to January 1956, the appellant was not bound to pay overtime and with the new system, “at least”, had to pay 16 overtime ..hours every 8 weeks, as if the change inured to the benefit *348of the worker. That was correct at the beginning for the obvious reason that the laborer worked only 5 days in each 168-hour period, not more than 40 hours. Under the subsequent program the appellant established a 6-consecutive-day week of 8 hours of work daily, clearly in excess of 40 hours. During a period of 8 weeks it was bound to pay time and a half in seven periods worked or for 56 hours instead of for only 16 hours. The chart objectively reveals that reality, as well as the fact that the laborers always worked six consecutive days prior to enjoying the rest period and starting work again.
I consider that in this aspect the judgment entered by the trial court should not be reversed inasmuch as it is a realistic appraisal given in the light of those facts in the record. The claims for wages, as well as all those other controversies which thrive under the shield of a public policy with definite purposes, call for fundamentally practical approaches and results rather than the technical refinement, as well as the individuation of each case in the light of its particular facts and circumstances, in order to make more effective the public policy involved.
In our present economy, which to the Puerto Rican interest is primarily one of wages and consumption, the worker’s wages are of utmost importance. It constitutes the vital flow of that economy. An interpretation or application of the law which in its practical effects bestows on wages the maximum protection provided by the applicable laws of the Congress and of the Commonwealth of Puerto Rico must be preferable inasmuch, as, aside from considerations, of human order, our worker consumes for its daily subsistence products from a country where the wages of workers more than double his own, it being necessary to absorb, as consumer, the burden of that higher salary in the cost of the product he consumes, *349increased, furthermore, by the freight costs of the marine which also best compensates its workers.5
Because of certain evidence in the record of this Court on review, I consider it appropriate to clarify, as I mentioned at the beginning, that that has been the question at issue within its true limits and not beyond its own ambit. It is nothing more than an action to assert the rights of some laborers in interstate commerce to receive extra compensation at time and a half provided by § 7 (a) of the federal Standards Act for each excess of 40 hours a week or 6th consecutive day they worked, which right they were denied by appellant under a particular manner of liquidating the workweek.
The judgment of the trial court involves no other problem of greater transcendency or complexity in the labor-management sphere. No claim was made nor extra compensation paid at a rate higher than the time and a half of § 7(a) of the federal Act. There is no question of minimum wage or of a mandatory decree or collective agreement regarding minimum wage; there is no controversy to be decided as to whether, as put in the words of an amicus curiae, “Is the existence of a collective or of a decree fixing the wages that should be paid in a factory or industry covered by the Federal Minimum Wage Act sufficient to make inapplicable the 'provided’ clause of said § 5 of Act No. 379?”, which question is said to affect industrialization greatly; neither does the controversy involve any problem concerning § 5 of Act No. 379 of 1948 and its “provided” clause in its relation to industries under the Federal Labor Standards *350Act inasmuch as the right of said workers at time and a half stems from said federal § 7 and not from our Act; nor is there anything in the judgment of the trial court, if affirmed, in the face of the true controversy, as there was nothing either in that of Porto Rico Coal Co. v. Superior Court, 91 P.R.R. 84 (1964) which threatens the industrialization program of Puerto Rico, fear which is frequently adduced as a fifth argument in relation to the claims for wages and which without the necessary ground in the facts and without any sense of selection, could result in a good argument in the serene judicial disposition of these controversies. Basic as the industrialization program is for our country, not every wage controversy nor every judgment upholding a claim for wages as in the case at bar necessarily affects said program.6
This case might probably be a warning to workers in interstate commerce while bargaining collectively of the effects, regarding overtime pay of §'7 of the Fair Labor Standards Act, of a work schedule consisting of six consecutive days of work and two consecutive days of rest within the frame of the calendar week, like the one herein put into practice by the appellant.
In my opinion the judgment appealed from should be affirmed in this aspect.
See Code of Federal Regulations of the Fair Labor Standards Act, § 778.2(c), (d); and Ponce v. Fajardo Sugar Co., 85 P.R.R. 575 (1962), cited many times by the appellant itself with approval.
See Tr. Ev. also at page 90 et seq.
Appearing before a subcommittee on Labor of the Senate, of the United States, Mr. David Dubinsky declared last August 14, that in February 1965, a year, the average wage in the manufacturing industries in Puerto Rico was $1.23, as compared to $2.59 in the United States, a difference of $1.36 an hour. — El Impareial, September 6, 1965.
The case of the Porto Rico Coal merely involved the overtime pay in excess of 8 hours a day. There was no compensation problem for the workweek, either federal or local. As seamen, those workers were expressly, excluded by the Fair Labor Standards Act itself of any protection regarding overtime pay. 'Before such situation in which the workers were left outside of the radius of federal action we were at liberty to grant them the maximum protection provided by our legislation and we compensated them at double time the work performed in excess of 8 hours a day.'