PAMANTASAN NG LUNGSOD NG MAYNILA
(University of the City of Manila)
Intramuros, Manila
GRADUATE SCHOOL OF MANAGEMENT
A Report on
LABOR RELATIONS
(DPM703: Administrative Problems in Development)
Submitted to:
Diony V. Varela, Ph.D.
Submitted by:
Ms. Lorelie S. dela Cruz
LABOR RELATIONS
‘Labor relations’ refers, in a broad sense, to the relationship between the
employees on one hand and management on the other. It also covers the relationship
between management and labor unions in unionized companies. Likewise, it refers to
the interactions between employer and employees or their representatives and the
mechanism by which the standards and other terms and conditions of employment are
negotiated, adjusted and enforced.
On the other hand, ‘Labor standards’ refers to the minimum terms and conditions
of employment to which employees are generally entitled and with which employers
must comply. Negotiating a contract and filing a complaint are aspects of labor relations
but their subjects oftentimes are labor standards. Labor standards and labor relations
actually intertwine; they are not mutually exclusive.
The government must protect the rights and interests of employees and of
employers. The government labor relations policy intends to attain social justice through
industrial peace and progress.
The latter is significantly founded on employee
participation and collective interactions between employer and employees.
In
Management parlance, the input is the parties’ rights and duties, the process is workers’
organization and collective bargaining, and the output is industrial peace and progress
towards social justice as the end goal.
The following Philippines laws and policies pertain to labor relations:
The 1987 Philippine Constitution
STATE POLICIES
Section 9. The State shall promote a just and dynamic social order that will
ensure the prosperity and independence of the nation and free the people from poverty
through policies that provide adequate social services, promote full employment, a
rising standard of living, and an improved quality of life for all.
Section 10. The State shall promote social justice in all phases of national
development.
Section 20. The State recognizes the indispensable role of the private sector,
encourages private enterprise, and provides incentives to needed investments.
ARTICLE XIII
SOCIAL JUSTICE AND HUMAN RIGHTS
LABOR
Section 3. The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and equality of
employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including the right to
strike in accordance with law. They shall be entitled to security of tenure, humane
conditions of work, and a living wage. They shall also participate in policy and decisionmaking processes affecting their rights and benefits as may be provided by law.
ARTICLE XIII
SOCIAL JUSTICE AND HUMAN RIGHTS
LABOR
The State shall promote the principle of shared responsibility between
workers and employers and the preferential use of voluntary modes in settling
disputes, including conciliation, and shall enforce their mutual compliance therewith to
foster industrial peace.
The State shall regulate the relations between workers and employers,
recognizing the right of labor to its just share in the fruits of production and the right of
enterprises to reasonable returns to investments, and to expansion and growth.
Presidential Decree 442
May 1, 1974
THE LABOR CODE OF THE PHILIPPINES
OMNIBUS RULES IMPLEMENTING THE LABOR CODE
(as amended by Presidential Decrees Nos. 570-A, 626, 643, 823, 849, 850, 865-A, 891,
1083, 1367, 1368, 1391, 1412, 1641, 1691, 1692, 1693, 1920, 1921 and 2018;
Executive Order No. 797; Batas Pambansa Blg. 32, 70, 130, and 227; Executive Orders
Nos. 74, 111, 126, 180, 203, 247, 251, 292, and Republic Acts Nos. 6715, 6725, 6727,
7610, 7641, 7655, 7658, 7700, 7730, 7796, 7877, 8042, and 9177)
A DECREE INSTITUTING A LABOR CODE THEREBY REVISING AND
CONSOLIDATING LABOR AND SOCIAL LAWS TO AFFORD PROTECTION TO
LABOR, PROMOTE EMPLOYMENT AND HUMAN RESOURCES DEVELOPMENT
AND INSURE INDUSTRIAL PEACE BASED ON SOCIAL JUSTICE
ARTICLE 3. Declaration of basic policy. - The State shall afford protection to
labor, promote full employment, ensure equal work opportunities regardless of sex, race
or creed and regulate the relations between workers and employers. The State shall
assure the rights of workers to self-organization, collective bargaining, security of
tenure, and just and humane conditions of work.
ARTICLE 4. Construction in favor of labor. - All doubts in the implementation
and interpretation of the provisions of this Code, including its implementing rules and
regulations, shall be resolved in favor of labor.
ARTICLE 5. Rules and regulations. - The Department of Labor and other
government agencies charged with the administration and enforcement of this Code or
any of its parts shall promulgate the necessary implementing rules and regulations.
Such rules and regulations shall become effective fifteen (15) days after announcement
of their adoption in newspapers of general circulation.
ARTICLE 6. Applicability. - All rights and benefits granted to workers under this
Code shall, except as may otherwise be provided herein, apply alike to all workers,
whether agricultural or non-agricultural. (As amended by Presidential Decree No. 570-A,
November 1, 1974).
The growth of industrialization has generated four (4) distinct ideas in social and
political thought:
 The government should assume the role of guardian over the interests
of labor. It has the right to regulate the manner in which the industry is
conducted so that it will promote general welfare.
Thus, industrial
peace is a responsibility of government, and labor disputes must be
settled within a framework of law and public policy to maintain peace
and harmony within the industry.
 The employer has a social and moral responsibility to ameliorate the
lot of his employees.
Extend to taking measures to afford the
employee a life fit for human being.
The employer has a moral
obligation to provide his employees opportunities to live decently and
with dignity.
 There is social justice. The law does not sanction the diminution or
suppression of benefits or protection to which the employees
concerned are entitled under existing contract of employment.
Likewise, the law does not prohibit contracts or company policies that
provide for better terms or greater benefits that those prescribed by
law.
 The government should actively intervene in labor disputes because
such disputes are costly to the disputants and the public, and may
even cripple the country’s economy. The Constitution brings about the
needed social and economical equilibrium between component
elements of society to be secured through the counter-balancing of
economic and social forces and opportunities which should be
regulated, if not controlled, by the state. The government does not
intervene in labor disputes to compel agreement between the employer
and employees. It leaves the settlement of disputes to the voluntary
agreement
between
the
parties
through
peaceful
bargaining,
conciliation and arbitration – the preferential modes of settling
disputes.
The Department of Labor and Employment (DOLE) is the national government
agency mandated to formulate and implement policies and programs, and serve as the
policy-advisory arm of the Executive Branch in the field of labor and employment. It
covers the following major areas:

Promotion of employment and manpower development and utilization

Protection of Workers’ welfare

Promotion and maintenance of industrial peace based on social justice
These functions are carried out through the following DOLE Bureaus, offices and
attached agencies:
Management’s Rights and Obligations/Responsibilities
The Management has prerogatives which are the rights and privileges of decision
and action flowing from managerial control – embraces all aspects of the business.
The two (2) aspects are the following:
1.
Operational Aspect – which means the freedom of the employer to
direct the operations of its business as it sees fit.

Impose reasonable conditions for hiring

Determine the size of the workforce

Reasonable returns of investment and to expansion and

Contract out the performance of some of its jobs or services

Reduce his personnel or close his establishment in the
growth
following cases:
o
redundancy;
Introduction
of
labor-saving
devices
results
in
o
Retrenchment is necessary to prevent losses or
cessation of operation of the establishment; and
o
Total closure is justified due to substantial losses in
business operations.

Suspend business operations in case of natural calamities
that hit the area of operations.
2.
Personnel Aspect – which means the freedom to prescribe policies
and rules regarding personnel actions, discipline and organization, including the right to
HIRE and FIRE.
o Hire
o Fire
o Transfer
o Promote
o Lay-off
o Lay down policies
o Discipline
o Determine work assignment
o Determine working structures
o Determine time, place, manner of work
o Supervise workers
o Regulate Work
o Undertake other management actions
Except as limited by special laws, an employer is free to regulate, according to
his own discretion and judgment, all aspects of employment.
management prerogatives is discretionary.
The exercise of management prerogatives must be:
The exercise of
1.
In good faith, without abuse of discretion;
2.
Tempered with compassion and understanding;
3.
If a penalty, it must be just and commensurate with the offense
committed by the employee; and
4.
Not in violation of any legal or contractual limitation.
The management also has its obligations and responsibilities as follows:
1.
regulations
Compliance with labor standards and social legislations
o
Overtime Pay
o
Night Differential
o
Holiday Pay
o
Service Incentive
o
Leave
o
Minimum Wage
o
13th Month Pay
o
Weekly Rest Periods
o
Meal and Rest Periods
o
Retirement Pay
o
Paternity and Maternity Leaves
o
Limits On Employment Of Women and Minors
o
Sexual Harassment Rules
o
Occupational Health And Safety Rules
2.
Compliance with contracts/agreements with employees
3.
Just and humane treatment of employees
4.
Compliance with requirements of due process
5.
Implementation of sound and clear company policies and rules and
Workers’ Rights and Obligations/Responsibilities
Rights are those which an individual has a rightful claim as a person in relation to
his workplace by law. On the other hand, privileges are those benefits given by the
company to a worker which may be taken away by the company at any time. However,
it should be emphasized that once these privileges are incorporated in the CBA, or
have been given/practiced for a long period of time, they automatically become rights of
the worker.
The workers also have their respective rights as follows:
o
Security of tenure
o
Just and humane conditions of work
o
Participate in decision-making
o
Self-organization
o
Just share in the fruits of production
o
Collective bargaining
o
Living wage
o
Labor standards
o
Engage in peaceful concerted activities in accordance with law
o
Participate in policy and decision-making processes affecting rights
and benefits as may be provided by law
o
Free access to the courts and quasi-judicial bodies and speedy
disposition of their cases
o
Labor education thru seminars, dialogues and information,
education and communication materials
The workers have the obligations and responsibilities to:
1.
To work in exchange of compensation under managerial control
2.
Follow company rules and policies.
3.
Observe proper care in the use of facilities, avoid wastages and
contribute to productivity
4.
To observe good faith and recommend reasonable and sensible
solutions to issues submitted before the Labor-Management Committee.
Even though the rights and obligations/responsibilities of the management and
workers are clearly identifies, it can never be avoided that there are disagreements
between them usually on the following reasons:
»
Compliance with Labor Standards and Occupational, Health and Safety
Laws - ‘Labor standards’ refers to the minimum terms and conditions of employment to
which employees are generally entitled and with which employers must comply.
»
Self-Organization and Collective Bargaining - ‘Right to self-organization’
is the right of workers and employees to form, join or assist unions, organizations or
associations for purposes of collective bargaining and negotiation and for mutual aid
and protection. It also refers to the right to engage in peaceful concerted activities or to
participate in policy and decision-making processes affecting their rights and benefits.
‘Collective bargaining’ is a process where the parties agree to fix and administer terms
and conditions of employment which must not be below the minimum standards fixed by
law, and set a mechanism for resolving their grievances.
»
Security of Tenure - ‘Security of tenure’ refers to the protection granted
to employees from arbitrary dismissals or terminations effected by employers. It is the
right of employees to remain in service until and unless they resign or are terminated for
a just or authorized cause and after being notified of the cause of termination and given
the opportunity to contest the same. Simply put, an employee could be terminated only
when substantial due process and procedural due process are complied with.
The disagreements if not settled will greatly affect the country’s economy. Labor
issues/disputes scare investors away.
Labor Dispute
A labor problem is a difficulty caused by impaired relations between employees
and management as a result of dissatisfaction, irritation, complaints, grievance and
misunderstanding between an employee and his or her employer with regard to an
employment-related situation.
‘Labor dispute’ includes any controversy or matter
concerning terms or conditions on employment. It is important for management and
employees to understand each other so problems can be avoided and harmonious
relationships can be attained.
There are some management attitudes, policies and practice that irritate workers
like:
 The desire of the employers to operate as economically as possible in
their efforts to make profit, while neglecting the welfare of workers.
 Modern business management practices of overloading the payroll
with high-salaried executives, technicians, and consultants, while
scrimping on workers’ wages.
 Management’s indifference and arbitrariness in dealing with workers.
 Management’s resentment of the undue protection by the government
if employees and unions through pieces of legislation.
Certain practices or acts of labor, on the other hand, following are some of the
sources of irritant to employers:
 The shift of workers’ loyalty from management to union.
 The reduction in management’s right to discipline or even just to deal
with employees, once they become union members.
 Inter-union (between and among unions) and intra-union (within union)
rivalries which make labor relations uncertain and create difficulties for
management.
 Acts of harassment by the union by way of filing all kinds of complaints
and grievances with the grievance machinery.
 Abuses of some employees because of their belief that they enjoy the
protection of the law and that the government will always be on their
side.
Kinds of Labor Disputes:
a.
Labor Standards Disputes
1.
Compensation – examples are underpayment of minimum wage;
stringent output quota; illegal pay deductions
2.
Benefits – examples are non-payment of holiday pay, overtime pay
or other benefits
3.
b.
Working conditions – example is unrectified work hazards
Labor Relations Disputes
1.
Organization Right Dispute/Unfair Labor Practice – examples are
coercion, restraint or interference in unionization efforts; reprisal or discrimination due to
union activities; company unionism; Unfair Labor Practice stricke or lock out; union
members’ complain against union officers
2.
Representation Disputes – examples are uncertainty as to which is
the majority union; determination of appropriate collective bargaining unit; contest for
recognition be different sets of officers of same union
3.
Bargaining Disputes – examples are refusal to bargain (Unfair
Labor Practice); bargaining in bad faith; bargaining deadlock; economic strike or lockout
4.
Contract Administration or Personnel Policy Disputes – examples
are non-compliance with Collective Bargaining Agreement provision (Unfair Labor
Practice if gross non-compliance with economic provisions); disregard of grievance
machinery; non-observance or unwarranted use of union security clause; illegal or
unreasonable personnel management policies; violation of no-strike/no-lockout
agreement
5.
Employment Tenure Disputes – examples are non-regularization of
employees; non-absorption of labor-only contracting staff; illegal termination; nonissuance of employment contract
Remedies in Labor Disputes
1.
Grievance Procedure – in-house adjustment of complaint, problem or
dispute following the steps prescribed in the Collective Bargaining Agreement or
company policy.
2.
Conciliation (literally means “to draw together”) – a process where
disinterested third party meets with management and labor, at their request or
otherwise, during a labor dispute or in collective bargaining conferences, and by cooling
tempers, aids in reaching an agreement.
3.
Mediation (literally means “to be in the middle”) – a third party studies
each side of the dispute then makes proposal for the disputants to consider. But a
mediator, like conciliator, cannot render an award or render a decision they do not
adjudicate.
Conciliation and mediation, usually combined, are done primarily by
“Conciliators-Mediators of the National Conciliation and Mediation Board.
4.
Enforcement or Compliance Order – and act of the Secretary of Labor
(through Regional Director or other representatives) in the exercise of his visitorial or
administrative authority to enforce labor laws, policies, plans or programs, or rules and
regulations.
5.
Certification of Bargaining Representatives – determination of which
contending unions shall represent employees in collective bargaining. This is handled
by “Med-Arbiters” of the Department of Labor and Employment Regional Offices after
certification or consent elections.
6.
Arbitration – the submission of a dispute to an impartial person for
determination on the basis of evidence and arguments of the parties. Arbitration, unlike
conciliation or mediation, is adjudication and the arbitrator’s decision or award is
enforceable upon the disputants. A dispute pending in arbitration cannot be a ground
for strike or lockout; to do so will be a sabotage of the arbitration process.
7.
Assumption of jurisdiction – an authority vested by law to the Secretary of
Labor or the President to decide a dispute causing or likely to cause a strike or lockout
in an industry indispensable to national interest.
8.
Certification to National Labor Relations Commission (NLRC) – an action
of the Secretary of Labor empowering NLRC to compulsorily arbitrate a dispute causing
or likely to cause a strike or lockout in an industry indispensable to national interest.
Either ‘assumption’ or ‘certification’ automatically enjoins an ongoing or impending
strike/lockout. A return-to-work order is issued to strikers; a the same time the employer
is ordered to immediately resume operations and readmit all workers under the same
terms and conditions prevailing before the strike or lockout.
9.
Injunction – is an extraordinary remedy which is not favoured in labor law.
A writ of injunction is issued to stop or restrain an actual or threatened commission of
prohibited or unlawful acts or to require the performance of an act, which if not
restrained or performed forthwith, may cause grave or irreparable damage to any party
or render ineffectual any decision in favour of such party. In short, an injunction makes
a negative or positive command.
As a rule, an injunction or an order to prevent or stop an act is avoided in
resolving a labor dispute. The state policy, rather, is to encourage the parties to use the
non-judicial processes of negotiation and compromise, mediation-conciliation and
arbitration.
The requirements or condition to secure injunction are provided for in Article
218(e) of the Labor Code.
10.
Judicial Action – complaint filed with regular court in cases falling under its
jurisdiction.
Examples: Offense against persons or property; criminal case of Unfair
Labor Practice; illegal recruitment
11.
Appeal – the process by which an order, decision, or award is elevated to
a higher authority, on specified grounds, do that the order, decision or award may be
modified or set aside and a new one issued. In instances where appeal is allowed, the
administrative remedies should be availed of, as a rule, before the aggrieved party may
go to court. This is the legal rule known as exhaustion of administrative remedies.
Examples of appeal: An enforcement order of a Regional Director in labor
standard cases is appealable to the Secretary of Labor; a denial of union registration in
the Regional Office is appealable to the Bureau of Labor Relations, a decision of a
Labor Arbiter is appealable to the appropriate NLRC division (but not to the Secretary of
Labor).
12.
Review by court – No law allows appeal from a decision of the Secretary
of Labor, or of the NLRC, or of a Voluntary Arbitrator. In these cases, the petition for
certiorari, prohibition or mandamus (Rule 65, Rules of Court) may be lodged with the
Supreme Court or the Court of Appeals. The grounds for petition for certiorari and/or
prohibition are abuse of discretion, or lack or excess of jurisdiction.
13.
Compromise agreement – in any stage of any of these settlement
processes, the labor dispute may be resolved by the parties through a compromised
agreement, provided that the agreement is freely entered into and is not contrary to law,
moral, or public policy. A compromise agreement is also subject to approval of the
authority before whom the case is pending. Even a labor standards case can be settled
through a compromise.
The NLRC is a quasi-judicial body tasked to promote and maintain industrial
peace by resolving labor and management disputes involving both local and overseas
workers through compulsory arbitration and alternative modes of dispute resolution. It is
attached to the DOLE for program and policy coordination. The NLRC is the principal
government agency that hears and decides labor-management disputes. It is tasked to
promote and maintain industrial peace by resolving labor and management disputes
involving both local and overseas workers through compulsory arbitration after
mandatory conciliation-mediation conferences failed. This is in consonance with the
mission of the NLRC to resolve labor disputes in the fairest, quickest, least expensive
and most effective way possible. The commission proper of the NLRC is tripartite in
representation. Under Republic Act No. 9347, the commission proper has eight (8)
divisions, each is composed of three (3) members with the presiding commissioner
representing the government sector and the other two members representing the
workers’ and the employers’ sectors.
During the mandatory conferences, the mediation and conciliation are conducted.
In mediation (literally means “to be in the middle”), a third party studies each side of the
dispute then makes proposal for the disputants to consider.
But a mediator, like
conciliator, cannot render an award or render a decision they do not adjudicate.
Conciliation and mediation, usually combined, are done primarily by “conciliatorsmediators of the national conciliation and mediation board.
On the other hand,
conciliation (literally means “to draw together”) is a process where disinterested third
party meets with management and labor, at their request or otherwise, during a labor
dispute or in collective bargaining conferences, and by cooling tempers, aids in reaching
an agreement.
Decisions, awards, or orders of the Labor Arbiter shall be final and executory
unless appealed to the Commission by any or both parties within ten (10) calendar days
from receipt thereof; and in case of decisions or resolutions of the Regional Director of
the DOLE pursuant to Article 129 of the Labor Code, within five (5) calendar days from
receipt thereof. If the 10th or 5th day, as the case may be, falls on a Saturday, Sunday
or holiday, the last day to perfect the appeal shall be the first working day following such
Saturday, Sunday or holiday.
No motion or request for extension of the period within which to perfect an appeal
shall be allowed.
The appeal may be entertained only on any of the following grounds:
a)
If there is prima facie evidence of abuse of discretion on the part of
the Labor Arbiter or Regional Director;
b)
If the decision, award or order was secured through fraud or
coercion, including graft and corruption;
c)
If made purely on questions of law; and/or
d)
If serious errors in the findings of facts are raised which, if not
corrected, would cause grave or irreparable damage or injury to the appellant.
The process flow in appealing for the decision made is as follows:
In 2011, the NLRC received various labor cases arising from money claims,
unfair labor practices, illegal dismissal, and other similar cases. The table on the next
page shows the data of nature of cases filed with the NLRC:
NATURE OF CASES
I
Money Claims
II
Unfair Labor Practices
III
Illegal Dismissal
IV Illegal Dismissal with Money Claims
No.
%
6,037
24.0%
99
0.4%
852
3.0%
16,957
68.0%
V
Unfair Labor Practices with Money Claims
100
0.4%
VI
ULP, Illegal Dismissal with Money Claims
196
1.0%
VII
Unfair Labor Practices with Illegal
Dismissal
38
0.2%
699
3.0%
24,978
100%
VIII Others
Grand Total
A policy brief of the Institute for Labor Studies that provides an assessment of the Single Entry
Approach implementation as an innovation in addressing disputes at the workplace.
What is the issue?
In 2010, President Benigno Simeon C. Aquino III issued the 22-Point Labor and
Employment Agenda, instructing the Department of Labor and Employment to reform
the labor arbitration and adjudication system by streamlining the procedures, removing
red tape and at the same time restore integrity and fairness. In response to this
directive, the Single Entry Approach (SENA) was made operational through Department
Order No. 107, Series of 2010. It is a means to de-judicialize the labor dispute
settlement system through the alternative dispute resolution (ADR) using the 30-day
mandatory conciliation-mediation of all labor cases in DOLE and industry based
conciliation-mediation by the Industry Tripartite Council. As the SENA marks its first
year of implementation, the question, “How does it fare as a means to lessen workplace
disputes?” come to the fore in policy discourse.
Why is a SENA assessment important?
SENA was introduced to improve the legalistic and adversarial system of settling
disputes in firms which has been alluded to as the cause of burgeoning number of labor
cases filed against the DOLE, NLRC and NCMB. It is hoped that implementing the
SENA in all labor dispute hearing offices will effectively reduce the labor cases that
need to be heard in compulsory arbitration and in courts.
An assessment of the SENA may provide useful policy insights on how its
affects the system of dispute settlement, the institutions implementing it and the
personnel utilized.
What are the existing policies on labor dispute settlement in the country that
SENA is complementing?
The Labor Dispute Settlement institutional framework of the Philippines is
governed by the principles enshrined in Article XIII of the Philippine Constitution,
particularly on shared responsibility between workers and employers, the preferential
use of voluntary mode of settling disputes, the rights of labor to just share in the fruits of
production and the right of enterprise to reasonable returns of investments for
expansion and growth. The law encourages bipartite system, which means basically the
employer-employees themselves must deal with their problems in a manner that
mutually suits them best. In general, Books V and VI of the Labor Code covers the
process of government intervention in labor disputes settlement. When labor disputes
require intervention of government, the process of labor dispute settlement system
operates. In general, DOLE has three tiers of resolution of disputes:
o
The first tier is the Alternative Dispute Resolution (ADR).It
encourages the preferential use of voluntary modes of settling disputes through
conciliation-mediation, collective bargaining, and labor-management cooperation.
o
The second is through Compulsory Arbitration governed by Article
217 of the Labor Code; the inspectorate machinery under Article 128(b), within the
mandate of the DOLE Regional Directors; the inter-intra union disputes under
Department Order 40-03 and the representation issues under Article 256; as well as
that on voluntary arbitration under Article 261.
o
The third tier is through the prevention of Strikes and Lockouts
under Article 263 (g) on Assumption of Jurisdiction.
What are the effects of SENA on Labor Dispute Settlement mechanism?
In a study by the Institute for Labor Studies that cursorily assesses the modes of
dispute settlement in the country some key findings on SENA were surfaced.
Numbers. After ten months of implementation (October 2010-August 2011), a
total of 11,330 request for assistance (RFAs) in labor conflicts were served.
At the regional level, there was a total of 6,849 cases settled at the settlement
rate of 60%, benefitting 9,370 workers with a monetary benefit of P120,602,650.36. At
the agency level, NCMB’s settlement rate is at 87%; NWPC at 62%; POEA at 69% and
NLRC at 8%; with the total settlement rate of 35%. This would mean that the dejudicialization approach thru SENA has already reduced the incoming labor dispute by
60% at the regional level, and 35% at the agency level.
On Speed. In general, dispute settlement thru SENA has the speed of 17 days
per case. The study participants who were interviewed revealed that SENA sped up
settlement of cases by about 200% and more. The shortest settlement period recorded
was 2 days. Simple money claims are settled from 1-2 weeks, with instances where
parties easily agreed on a settlement even without personal appearance and details
were explained only through phone and other IT medium. More difficult cases that
cannot be settled after two hearings were elevated at the regional office for full
exhaustion of conciliation mediation.
On Cost. SENA has no cost to both parties (workers and employers). Payment
of claims was made right after the agreement and before the signing of quitclaims in
front of the SEADO/desk officer. Added to this is the availability of SEAD to the
location/residence of the parties, further lowering the cost on transportation on the part
of the clients.
Cost on operations of the establishment with a dispute being heard through
SENA is minimal because business there is little man-days lost.
On Effectivity. In SENA, where meetings are held in a candid and informal
manner, both parties are given ample time to freely speak of their sides on issues.
Since the conferences are with the end view of settling, any agreement arrived through
SENA has the possibility of patching up strained relationship, since the process is faceto-face, transparent, open, and with much consideration for human compassion.
For monitoring purposes, the SEADO retains record of the banks and the date of
the checks awarded arising from money claim cases.
On enforceability. DOLE officials interviewed claimed that SENA lacks
enforceability, because D.O. 107 has no provision on penalties. Settlement agreements
cannot be enforced to both parties. Payments of settled amounts are mostly done in the
DOLE office. The study informants explained that the key to enforcement is not the
policy itself but the persuasive approach and the creativity of the SEADO involved to
make the parties commit payments. Since the SENA is a voluntary process, the skills of
SEADO need to be honed to make the program enforceable.
Effects of SENA in NCMB’s dispute settlement mechanism. Study
respondents cited several effects of SENA. First, there was a de-clogging of NCMB
cases as SENA helped to avoid the conflicts to ripen into labor disputes. Second, the
pro-active approach in settlement helps in limiting the disputes to be handled by NCMB.
However, if in case of failure of settlement through SENA, there becomes an added
layer of conciliation-mediation, which means, that the disputes will again undergo the
process when endorsed to NCMB. All in all though, SENA helps in maintaining harmony
at workplaces, and preservation of jobs/employment.
Effects of SENA in NLRC dispute settlement mechanism. The assessment
indicated that SENA further delays the arbitration process at NLRC. SENA is just a
duplication of what the Arbiter is doing during the mandatory conference. One of the
respondents explained that the ratio of SENA settlement in her sala is 1:10 (one
settlement per 10 cases). She explained that for cases within their jurisdiction, the
arbiter is more effective in settling issues because of the authority and respect accorded
by both parties. The arbiters are effective in explaining the pros and cons of proceeding
to compulsory arbitration.
What are considerations in examining the Single Entry Approach (SENA) as a
policy toward attaining decent work?
The Decent Work Framework, which is the guiding measure for analyzing
policies and programs in the current medium term, sets out four priority areas called
“pillars” that need to be considered (employment, rights at work, social protection and
social dialogue pillars) must be equally applied to the proposed policy. The policy in
SENA would have to be subjected to the four-way test established in the framework,
which are:
1.
Will it help increase employment levels?
2.
Will it help expand access to expand access to employment
3.
Will it help improve the quality of employment?
4.
Will it help promote mutual and/or collective gains?
opportunities?
Such determinants are considered in the following portions of this brief.
Will SENA help increase employment levels?
It is logical to assume that de-judicialization of settlement of dispute through
mandatory conciliation mediation will make dispute resolution fast, simple, transparent
and effective. After 10 months of implementation, there is a significant filtering of
disputes by 60%. Faster resolution of disputes means less disruption to the level of
employment at firm-level. Ideally, maintaining harmony at the workplace induces a
steady level of productivity which is needed by the employer in competing in the world
market. Success in business competition would spell an increase of workforce needed
by the company which in turn positively affecting the overall levels of employment.
Will it help expand access to employment opportunities?
The new policy has the potential of attracting more investments in the country.
SENA approach helps in maintaining a relatively peaceful industrial climate. A peaceful
scenario at work is very much a plus for businesses, especially in manufacturing
industries, since part of the country’s leading export-led products belong to a chain of
production worldwide. The same is true in services sector. Maintaining a peaceful
climate in our tourist destinations, hotels, restaurants and resorts means better services
and could attract more tourist inflow, thereby expanding employment opportunities at
the countryside.
Will it help improve the quality of employment?
From the perspective of workers welfare and social protection the following prosand con- scenarios may be brought about by the policy.
On individual incomes. SENA provides the most economical and fastest way of
resolving conflicts. The speedier the conflicts will be the less man-days will be lost in
production line. The lesser the tension at the workplace, the greater the productivity at
work. Logically, the more productive workforce has become, the high leverage of
increasing their income will be.
SENA likewise remove legal cost on part of the employee in resolving their
disputes. Since it brings the venue of settlement at the place where parties reside, it
lessens their transportation cost, and the time spent in the attending conferences is
minimized. Likewise, fast resolution of disputes will lessen employees’ tensions.
On establishment cost and potential earnings. Resolution of disputes through
SENA may reduce legal and representation costs on part of the management. The
immediate resolution of disputes and patching up strained relations results in lessening
the mandays lost in production line. A steady average of productivity is necessary for
them to satisfy their clients’ needs. In doing business today, the establishments cannot
afford work disturbance, because it would mean lost of actual clients and also lost in
potential earnings.
Will it help promote mutual and/or collective gains?
The SENA is a prime example of social dialogue working toward the advantage
of government, workers and employers. The potential gains in the approach can be
toward preserving jobs among workers, preventing business losses among firms, and
de-clogging the institutions in DOLE of labor dispute cases left unheard. Secretary
Baldoz in her keynote message pronounced a major breakthrough achieved by the
dispute settlement system through SENA, as it includes fast and immediate resolution
of disputes, resuming productivity and strengthening the country’s reputation as Asia’s
haven for industrial peace.
What are the problems observed at the regional offices after ten months of SENA
implementation?
While SENA program can make dispute resolution speedier, there are also
perceived problems in the fast settlement of disputes:
-
SENA may diminish the rightful benefits to be received by the
complainants. The single entry desk officers (SEADO) do not use computation in arrival
to settlement. In a negotiated settlement, the workers negotiated from the position of
weakness as against to the position of employers strength. An individual employee
negotiating with the employer is at the mercy of the latter notwithstanding the presence
of third party (SEADO). There is a tendency of lopsidedness in favor of employers on
money claims issues.
-
SENA may serve as another layer of dispute resolution of cases. The
conciliation and mediation can still be availed of by the parties under the traditional way
of handling disputes after exhausting all the possibilities SENA process did not prosper,
For cases submitted for compulsory arbitration, SENA may cause delay in the conduct
of preliminary conference.
-
DOLE Regional Offices as implementers of the program at the field and
provincial offices find themselves spreading too thinly on implementing many programs
at DOLE. The DOLE Regional Offices lacks manpower to operate and report all DOLE
programs cascaded at the region, including the conduct of SENA.
What are the facilitating and hindering factors identified by the implementers after
10 months of SENA experience?
The study conducted by the Institute noted some facilitating and hindering factors
in the conduct of conciliation-mediation thru SENA.
Some factors that facilitates the settlement of cases includes: a) setting the tone
right and the proper approach to both parties; b) friendly SEADO; c) well-informed,
skillful and knowledgeable SEADO; d) SEADO’s commitment; e) continued training and
upgrading of skills among implementers; f) creativeness and willingness to do extra
miles in case settlement; g) sense of fulfilment instead of seeking for remuneration
among SEADOs; and h) the continuous monitoring and evaluation of the SENA. On the
other hand, some of the factors that hinder SENA performance includes: a) lack of
enforcement in the agreement; b) rigidity of 30-day mandatory period; c) lack of
SEADOs in all dispute-hearing desks; d) non-appearance of parties.
What can the prospects of a Single Entry Approach in dispute settlement policy
be?
The study suggests that to make the dispute settlement system effective and
enforceable, SENA should be within a policy context where the concentration of
government interventions are on Alternative Dispute Resolution (ADR) approaches and
strategies on dispute prevention right where they happen.
.
This ADR strategy should need strong advocacy and institutionalization at the
workplace, through extensive labor education programs. Labor education should be
made available and understandable to all workers, from their pre- to post-employment
situations. To make it more effective, labor education and labor policy appreciation
should be made mandatory to all human resource practitioners. The programs should
be coupled with manpower and financial resources on the side of government.
The study further suggested that the system restructuring and policy
reformulation to take into consideration the Filipino values on resolving differences. This
includes transparency and openness (paglilinaw); trust (pagtitiwala); compassion
(pagmamalasakit) ; and consensus building (pagkakasundo).
Hence, Books V and VI of the Labor Code, the DOLE programs and policies in
Dispute Settlement System, may be explored to be reconstructed in a manner as
follows:
0.1%
9.9%
20.0%
70.0%
100.0%
-
Assumption of Jurisdiction
Compulsory Arbitration
Conciliation Mediation (SENA Approach)
Alternative Dispute Resolution (ADR) Strategies;
Labor Education Programs: Firm's Best
Practices; Labor Management Partnership, ITC,
TIPC and LGU’s ADR initiatives
The law is a landmark piece of labor and social legislation that recognizes for the
first time domestic workers as similar to those in the formal sector. It strengthens
respect, protection, and promotion of the rights and welfare of domestic workers or
kasambahay.
The President, in his first State of the Nation Address in 2010, called for a
legislation to benefit household workers.
In June 2011, the International Labor Organization Convention No. 189 or the
Decent Work for Domestic Workers Convention was adopted during the international
labour conference. This contributed to the early passage of the law.
PART 1. BACKGROUND
1. What is Republic Act No. 10361?
Republic Act No. 10361 is an Act Instituting Policies for the Protection and
Welfare of Domestic Workers, otherwise known as ‘Domestic Workers Act’ or ‘Batas
Kasambahay.’
2. When was it signed into law?
It was signed by President Benigno S. Aquino III on 18 January 2013.
3. When did the law become enforceable?
The law became enforceable on 04 June 2013 or fifteen (15) days after the
publication of its Implementing Rules and Regulations (IRR) on 19 May 2013 in The
Philippine Star and the Manila Times.
4. What is the significance of the passage of the law?
The law is a landmark piece of labor and social legislation that recognizes for the
first time domestic workers as similar to those in the formal sector. It strengthens
respect, protection, and promotion of the rights and welfare of domestic workers or
kasambahay.
5. How long did it take the Congress to pass the law?
It took sixteen (16) years for Congress to pass the Kasambahay Law or Magna
Carta for Domestic Workers.
The last legislation passed in Congress was in 1993 or nineteen (19) years ago.
This was Republic Act No. 7655, or An Act Increasing the Minimum Wage of
Househelpers.
6. Under the present administration, what initiatives have been taken to fast-track
the passage of the law?
The President, in his first SONA in 2010, called for a legislation to benefit
household workers. Bills were immediately filed in both houses of Congress which
resulted in the approval of consolidated Senate Bill No. 78 in 2011 and House Bill No.
6144 in 2012. It took only two (2) years for both bills to pass Congress through the
leadership of Senator Jinggoy Ejercito Estrada and Representative Emil L. Ong. The
Batas Kasambahay can also be referred to as the “Estrada-Ong Law.”
7. What developments in the International Labour Organization contributed to the
early passage of the law?
In June 2011, ILO Convention No. 189 or the Decent Work for Domestic Workers
Convention was adopted during the International Labour Conference. This contributed
to the early passage of the law.
The Philippines chaired the two-year double discussion on the Convention and
Recommendation at the Conference Committee on Domestic Work.
8. Did the Philippines ratify the Convention and if so, when?
Yes. President Benigno S. Aquino III ratified the Convention on 18 May 2012 and
the Senate concurred in the ratification on 06 August 2012.
9. What is the effect of the ratified Convention to the Philippines?
The ratification of the Convention created legal obligation for the Philippines to
observe the principles embodied in the Convention, both in law and in practice.
10. When is the effectivity of the ratified Convention?
The Convention takes into force and effect on 05 September 2013, a year after
the deposit of the Philippine instrument of ratification with the ILO on 05 September
2012.
11. What is the added significance of the Kasambahay Law in relation to our
compliance requirement with ILO Convention 189?
The Batas Kasambahay forms part of our progressive compliance with ILO
Convention 189.
12. How many domestic workers are estimated to benefit from the law?
Estimates place the number of local kasambahay at 1.9 million.
PART II. THE LAW
1. Who are the kasambahay covered by the law?
All kasambahay engaged in domestic work, whether on a live-in or live-out
arrangement, such as, but not limited to, the following:
a. general househelp;
b. yaya;
c. cook;
d. gardener;
e. laundry person;
f. working children or domestic workers 15 years and above but below 18
years of age; or
g. any person who regularly performs domestic work in one household on
an occupational basis (live-out arrangement).
2. Who are not covered?
The following are not covered by the Batas Kasambahay:
a. service providers;
b. family drivers;
c. children under foster family arrangement; and
d. any other person who performs work occasionally or sporadically and
not on an occupational and regular basis.
3. Who are children under foster family arrangement?
Children under foster family arrangement are those who are living with a family or
household of relative/s and are provided access to education and given an allowance
incidental to education, i.e., “baon,” transportation, school projects, and school activities;
provided, that the foster family and foster care arrangements are in compliance with the
procedures and requirements as prescribed by Republic Act No. 10165 or Foster Care
Act of 2012.
4. What are the examples of persons performing work occasionally or
sporadically and not on an occupational basis?
a. A janitress doing irregular laundry work for a household during rest day;
b. A construction worker doing casual gardening job for a household; or
c. A hospital nurse or a student doing baby-sitting job.
5. What is the employable age for a kasambahay?
Fifteen (15) years old and above.
6. Under what conditions may the employment of children fifteen (15) but below
eighteen (18) years of age be made?
a. They shall not be allowed to work for more than eight (8) hours a day, and in
no case beyond forty (40) hours a week;
b. They shall not be allowed to work between ten o’clock in the evening and six
o’clock in the morning of the following day;
c. They shall not be allowed to do hazardous work; and
d. They shall not be denied access to education and training.
7. Who is the employer of a kasambahay?
An employer is any person who engages and controls the services of a
kasambahay and is party to the employment contract.
8. Under the law, who are included in the employer’s household to be provided
direct service by the kasambahay?
Immediate family members or other occupants of the house who are directly and
regularly provided services by the kasambahay.
9. How can an employer hire a kasambahay?
An employer can hire directly or through private employment agencies (PEA)
registered with the DOLE regional offices.
10. Who pays the cost of hiring a kasambahay?
The employer, whether the kasambahay is hired directly or through PEA, shall
shoulder the expenses for hiring.
The kasambahay shall not be charged of any cost of the recruitment, placement,
or finder’s fee.
11. Who shall pay the deployment expenses or cost of transportation of the
kasambahay?
The employer, whether the kasambahay is directly hired or through PEA, shall
pay the expenses that are directly used for the transfer of the kasambahay from place of
origin to the place of work.
12. When can an employer be reimbursed of the deployment expenses?
When the kasambahay unreasonably leaves the employer within six (6) months
from the time he/she started work.
13. Are there pre-employment requirements?
Yes. Before entering into an employment contract, the employer has the option to
require the following from a kasambahay:
a. Medical certificate or health certificate issued by a local government
health officer;
b. Barangay and police clearance;
c. NBI clearance; and
d. Duly authenticated birth certificate or, if not available, voter’s
identification card, baptismal record, or passport showing the kasambahay’s age.
14. Is there an instance when the pre-employment requirements are mandatory?
Yes, when the employment of the kasambahay is facilitated through a PEA.
15. Who pays for the cost of the pre-employment documents?
The prospective employer or PEA shall pay for the cost.
16. Is it a requirement for a kasambahay to be trained and certified by TESDA
prior to employment?
No. However, the kasambahay is encouraged to undergo competency
assessment and be certified by TESDA. Training is not a requirement for competency
assessment.
17. Is a contract necessary before entering into an employment for domestic
work?
Yes. The employer and the kasambahay shall enter into a contract of
employment written in a language or dialect understood by them.
18. Is the contract required to be notarized?
No, it is not necessary. The Punong Barangay or his/her designated officer may
attest to the contract and serve as witness to its execution.
19. What should be the contents of the employment contract?
a. Duties and responsibilities of the kasambahay;
b. Period of employment;
c. Compensation;
d. Authorized deductions;
e. Hours of work and proportionate additional payment;
f. Rest days and allowable leaves;
g. Board, lodging and medical attention;
h. Agreements on deployment expenses, if any;
i. Loan agreement;
j. Termination of employment; and
k. Any other lawful condition agreed upon by both parties.
20. Is the consent of the parent/guardian of working children required in the
employment contract?
Yes. Such consent should appear in the employment contract.
21. Is the employer required to register the kasambahay? If yes, where?
Yes. The employer is required to register the kasambahay in the Registry of
Domestic Workers in the barangay where the employer resides. For this purpose, the
DILG, in coordination with the DOLE, shall formulate a registration system.
22. Is the registration system of the kasambahay free of charge?
Yes, it is free.
23. What are the mandatory benefits of the kasambahay?
a. Monthly minimum wage;
b. Daily rest period of 8 (total) hours;
c. Weekly rest period of 24 (uninterrupted) hours
d. 5 days annual service incentive leave with pay;
e. 13th month pay;
f. SSS benefit;
g. PhilHealth benefit; and
h. Pag-IBIG benefit;
24. What are the other rights and privileges of the kasambahay?
a. Freedom from employer’s interference in wage disposal;
b. Standard of treatment;
c. Board, lodging, and medical attendance;
d. Right to privacy;
e. Access to outside communication;
f. Access to education and training;
g. Right to be provided a copy of the employment contract;
h. Right to Certificate of Employment;
i. Right to form, join, or assist labor organization;
j. Right to terminate employment based on just cause; and
k. Right to exercise religious beliefs and cultural practices.
25. What are the basic necessities of the kasambahay?
a. At least three (3) adequate meals a day, taking into consideration the
kasambahay’s religious beliefs and cultural practices;
b. Humane sleeping condition; and
c. Appropriate rest and basic medical assistance.
26. Is the employer required to provide the kasambahay with shampoo, soap,
toothpaste, etc.?
Though not part of the “basic necessities” required to be provided by the
employer to the kasambahay, these may be provided gratuitously.
27. What is the extent of the basic medical assistance which the employer should
provide to his/her kasambahay?
First-aid medicines (e.g. paracetamol, mefenamic acid, antiseptic, etc.) in case of
illnesses and injuries sustained during service.
SSS, ECC and PhilHealth have programs that can address the medical expenses of the
kasambahay.
28. How much is the monthly minimum wage of a kasambahay?
For those employed in:
1. National Capital Region - P2,500.00
2. Cities and 1st class municipalities - P2,000.00
3. Other municipalities - P1,500.00
29. Do we need to amend the law before the monthly minimum wage of the
kasambahay may be increased?
No. The law provides a mechanism for increasing the minimum wage of the
kasambahay. Initially, one year from 04 June 2013, the Regional Tripartite Wages and
Productivity Boards (RTWPB) may review, and if proper, determine and adjust the
minimum wage.
The RTWPB shall coordinate with TESDA on the wage review and adjustment
based on the kasambahay’s competency level, in line with the thrust to professionalize
the domestic service sector.
30. In what form and when will the wage of a kasambahay be paid?
In cash, at least once a month.
31. Can the employer pay the kasambahay in any form other than cash?
No. Payment of wages by means of promissory note, voucher, coupon, token,
ticket, chit, or anything other than the cash wage is prohibited.
32. Is the employer obliged to issue pay slip upon payment of the salary of the
kasambahay?
Yes. The employer shall at all times provide the kasambahay with a copy of the
pay slip every pay day containing the amount paid and all deductions made, if any.
33. How long should the employer keep copies of the pay slips?
Three (3) years from issuance.
34. Is the kasambahay entitled to daily rest period?
Yes. He/she is entitled to a total daily rest period of at least 8 hours.
35. Can the employer require the kasambahay to work beyond 16 hours at any
given workday in return for an equivalent hourly rate?
No. The eight-hour rest period must be observed.
36. Is the kasambahay entitled to a weekly rest period?
Yes. He/she is entitled to at least 24 consecutive hours of rest in a week.
37. Can the employer shorten the 24-hour rest day period of the kasambahay?
No. However, the kasambahay and the employer may agree to shorten the rest
day, provided the employer pays for the hours worked during the shortened rest day.
38. Who determines the weekly rest period of the kasambahay?
The employer and the kasambahay determine the schedule of the weekly rest
period.
39. On what ground will the employer respect the preferred weekly rest day of the
kasambahay?
The employer shall respect the preferred weekly rest day of the kasambahay on
religious grounds.
40. When can the kasambahay avail of the five-day annual Service Incentive
Leave?
After one (1) year of service.
41. What will happen if the kasambahay fails to avail of any of his/her annual
Service Incentive Leave?
It shall be forfeited and cannot be converted to cash.
42. What other agreements may the employer and the kasambahay enter into
relative to the kasambahay’s weekly rest day and SIL?
a. Offsetting a day of absence with a particular rest day;
b. Waiving a particular rest day in return for an equivalent daily rate of pay;
c. Accumulating rest days not exceeding five (5) days;
d. Adding the accumulated rest days (maximum of 5 days) to the five-day SIL;
and
e. Waiving a particular SIL in return for an equivalent daily rate of pay.
43. When will a kasambahay be entitled to the 13th month pay?
After one (1) month of service.
44. How is the 13th month pay computed and when is it paid?
In computing the 13th month pay, the total basic wage received in a given
calendar year shall be divided by 12. The amount derived shall be paid not later than
December 24.
45. When will a kasambahay be covered by SSS, PhilHealth, and Pag-IBIG?
After one (1) month of service.
46. Is the employer liable under the SSS, PhilHealth, and Pag-IBIG laws in case
the kasambahay refuses membership with those agencies?
Membership under the SSS, PhilHealth, and Pag-IBIG is mandatory and nonnegotiable.
47. Supposing that in exchange for non-membership, the kasambahay agrees
with the employer to receive the premiums and contributions in addition to his/
her salary, is this allowed?
No. Under the SSS, PhilHealth, and Pag-IBIG laws, the employer has the
obligation to register the kasambahay and deduct and remit the required premiums and
contributions. The employer shall incur certain liabilities, including criminal prosecution,
if he fails or refuses to comply with his/her obligations.
48. Who will pay the SSS premium, and PhilHealth and Pag-IBIG contributions of
the kasambahay?
The employer, if the wage of the kasambahay is less than P 5,000.00. If the
wage of the kasambahay is P 5,000.00 or more, the kasambahay will pay his/her share
in the premiums/contributions.
49. Does the law have provisions protecting employers of kasambahay?
Yes. They include:
a. Prohibition against privileged information;
b. Employer may require certain pre-employment documents prior
toengagement;
c. Employers are assured of quality services through DOLE-TESDA
training, assessment, and certification of kasambahay;
d. Forfeiture of 15-day unpaid salary should the kasambahay leave the
residence of the employer without any justifiable reason; and
e. Right to terminate the employment on justifiable grounds.
50. Can the kasambahay terminate the contract at any time?
Yes, on the following grounds:
a. Verbal or emotional abuse of the kasambahay by the employer or any
member of the household;
b. Inhuman treatment including physical abuse of the kasambahay by the
employer or any member of the household;
c. Commission of a crime or offense against the kasambahay by the
employer or any member of the household;
d. Violation by the employer of the terms and conditions of the
employment contract and other standards set forth under the law;
e. Any disease prejudicial to the health of the kasambahay, the employer,
or member/s of the household; and
f. Other causes analogous to the foregoing.
51. Can the employer also terminate the contract at any time?
Yes, on the following grounds:
a. Misconduct or willful disobedience by the kasambahay of the lawful
order of the employer in connection with the former’s work;
b. Gross or habitual neglect or inefficiency by the kasambahay in the
performance of duties;
c. Fraud or willful breach of the trust reposed by the employer on the
kasambahay;
d. Commission of a crime or offense by the kasambahay against the
person of the employer or any immediate member of the employer’s family;
e. Violation by the kasambahay of the terms and conditions of the
employment contract and other standards set forth under the law;
f. Any disease prejudicial to the health of the kasambahay, the employer,
or member/s of the household; and
g. Other causes analogous to the foregoing.
52. Can the employer and the kasambahay terminate the contract anytime?
Yes, provided that the kasambahay and the employer mutually agree upon
written notice.
53. If the duration of the domestic service is not determined in the contract, can a
kasambahay or the employer terminate the contract anytime?
Yes. Either the employer or the kasambahay may give notice to end the working
relationship five (5) days before the intended date of the termination of service.
54. What are the entitlements of a kasambahay unjustly dismissed by the
employer?
a. Outright payment of earned wage; and
b. Indemnity benefit in the form of wage equivalent to fifteen (15) days work.
55. What are the liabilities of a kasambahay who leaves his/her employer without
justifiable reason?
a. Forfeiture of wage equivalent to fifteen (15) days work; and
b. Reimbursement of the deployment expenses, if the employment contract is
terminated within six (6) months from employment.
56. Can the employer inspect the belongings of the kasambahay before he/she
leaves the household in case of termination of employment?
No. However, the employer and the kasambahay can agree in their employment
contract that an inspection can be made before he/she leaves the household.
57. If there is non-payment or underpayment of wage and other labor-related
concerns, where can the kasambahay seek assistance?
The kasambahay can go to a Kasambahay Desk Officer situated in their
respective barangays or the nearest DOLE field/provincial/regional office.
58. If a kasambahay is hired thru a Private Employment Agency (PEA), can it
charge Service Fee from the employer as well as Recruitment or Finder’s Fee
from the kasambahay?
Although, the PEA is allowed to collect Service Fee from the employer, in no
case shall it charge Recruitment or Finder’s Fee from the kasambahay.
59. Can the employer demand from a PEA the replacement of a kasambahay?
Yes. Within one month from the day the kasambahay reported for work, the
employer may demand a replacement based on the following cases:
a. The kasambahay is found to be suffering from an incurable or contagious
disease, or mental illness as certified by a competent or government physician;
b. The kasambahay abandons the job without justifiable cause, voluntarily
resigns, commits theft or any other analogous acts prejudicial to the employer or his/her
family; or
c. The kasambahay is physically or mentally incapable of discharging the
minimum requirements of the job, as specified in the employment contract.
60. What will happen in case the PEA fails to provide a qualified replacement after
one month from receipt of the employer’s request?
The employer shall be entitled to a refund of seventy-five percent (75%) of the
fees paid to the PEA.
61. What are the declared responsibilities of the Private Employment Agency
under the law?
a. Ensure that the kasambahay is qualified as required by the employer;
b. Secure the best terms and conditions of employment for the kasambahay;
c. Ensure that the employment agreement between the kasambahay and the
employer stipulates the terms and conditions of employment and all the benefits in
accordance with the IRR;
d. Provide a pre-employment orientation briefing to the kasambahay and the
employer about their rights and responsibilities in accordance with this IRR;
e. Ensure that the kasambahay is not changed or required to pay any recruitment
or placement fees;
f. Keep copies of employment contracts and agreements pertaining to recruited
kasambahay which shall be made available during inspections or whenever required by
the DOLE or local government officials;
g. Assist the kasambahay in filing his/her complaints or grievances against the
employers;
h. Cooperate with government agencies in rescue operations involving abused or
exploited kasambahay; and
i. Assume joint and solidary liability with the employer for payment of wages,
wage-related and other benefits, including monthly contribution for SSS, PhilHealth, and
Pag-IBIG membership.
62. What are the specific acts declared “unlawful” under the law?
a. Employment of children below 15 years of age;
b. Withholding of the kasambahay’s wages;
c. Interference in the disposal of the kasambahay’s wages;
d. Requiring kasambahay to make deposits for loss or damage;
e. Placing the kasambahay under debt bondage; and
f. Charging another household for temporarily performed tasks.
63. What are the penalties for the commission of unlawful acts under the law?
Unlawful acts are punishable with an administrative fine ranging from P 10,000 to
P40,000 to be imposed by the DOLE Regional Offices.
64. What other remedies for unlawful acts are available under the law?
The aggrieved party may file the appropriate civil or criminal action before the
regular courts.
65. Does the law afford remedy for abused or exploited kasambahay?
The law mandates the conduct of immediate rescue of abused or exploited
kasambahay by the municipal or city social welfare officer or a social welfare officer
from DSWD, in coordination with the concerned barangay officials.
The law sets out that crimes or offenses committed under the Penal Code and
other criminal laws shall be filed with the regular courts.
REFERENCES:
Sison, Perfecto S., Personnel Management in the 21st Century, Philippine: Rex Printing
Company, Inc., November 2007
Azucena, Jr., Cesario A., The Labor Code (With Comments and Cases), Volume II, 7th
Edition, Philippines: Rex Printing Company, Inc., 2011
Institute for Labor Studies, Department of Labor and Employment, 5F DOLE Bldg., Gen.
Luna Wing, Intramuros Manila
Department of Labor and Employment