Last
18 January 2013, in fulfillment of the Philippines’ commitment under the
International Labor Organization (ILO) Domestic Workers Convention 2011,
President Benigno S. Aquino III signed into law, Republic Act No. 10361 (An Act
Instituting Policies for the Protection and Welfare of Domestic Workers),
otherwise known as the “Domestic Workers Act” or “Batas Kasambahay.”
The
Act applies to all domestic workers employed and working within the
Philippines. “Domestic Worker” or “Kasambahay” refers to any person engaged
in domestic work or those who perform work in or for a household or households.
This includes, but is not limited to, the general househelp, nursemaid or
“yaya”, cook, gardener, or laundry person. Although not specifically mentioned,
family drivers, owing to the nature of their services, are likewise included
within this definition, as was the case under the now-repealed provisions of
the Labor Code.
Apart
from reiterating the standards of employment for domestic workers found in the
Labor Code, the Act likewise builds on the same and clarifies the basic rights
that are to be afforded domestic workers.
Right
to Basic Necessities
First
among these rights is the right of the domestic worker to be provided with
basic necessities by the employer. While the Labor Code states that employers
should provide food, lodging, and medical assistance to domestic workers, the
Act goes further in specifying that these are only minimum requirements which
may be required of the employer. Specifically, under the Act, it is the right
of domestic workers to be provided with at least three (3) adequate meals day,
humane sleeping arrangements that ensure safety, and appropriate rest and
medical assistance.
Right
to Privacy
The
Act also recognizes the right of domestic workers to privacy, which should be
respected at all times by employers. This right extends to all forms of
communication and personal effects of the domestic worker.
Right
to Access to Outside Communication
Domestic
workers are also now expressly given the right to have access to outside
communication during their free time. This, however, does not mean that the
employer should be the one to shoulder the costs of communication of the
domestic worker, which shall be at the latter’s expense.
Right
to Education and Training
Under
the Act, each domestic worker, regardless of age, is entitled to be afforded
the opportunity to finish basic education. It is unclear, however, if this
refers only to elementary education, or if the costs of education may still
form part of the domestic worker’s compensation. Contrast this with the Labor
Code, where only domestic workers below the age of 18, are required to be given
the opportunity to finish elementary education, with the costs forming part of
the domestic worker’s compensation, unless otherwise stipulated. In any event,
as a necessary consequence of this right, employers are now expressly required
to adjust the worker’s work schedule to allow access to basic education and
training.
Minimum
Compensation
Apart
from enumerating the basic rights of domestic workers, the Act also raises the
minimum wage of domestic workers to the following amounts: PhP 2,500.00/month
for those employed in the National Capital Region, PhP 2,000.00/month for those
employed in chartered cities and first class municipalities; and PhP
1,500.00/month for those employed in other municipalities. These wages are
understood to be without prejudice to those workers receiving higher salaries,
which should not be reduced as a result of the Act.
Notably,
it is now mandatory for employers to issue payslips to domestic workers, which
should indicate the worker’s salary and all the deductions made, if any. A copy
of the payslip is likewise required to be given to the domestic worker, with
the employer being required to keep copies as well for at least 3 years.
Similarly,
the Act also makes it mandatory for domestic workers, who has rendered at least
one (1) month of service, to be enrolled in, or covered by, the SSS, Phil
Health, and the Home Development Mutual Fund or Pag-IBIG, with the employer
shouldering the premium payments or contributions. However, if the monthly
salary of the worker is at least PhP 5,000.00, the domestic worker is obliged
to pay his or her proportionate share of the premium payments, as provided by
law. This is not optional on the part of either party.
Daily
Rest Periods, Weekly Rest Days and Leave Benefits
One of
the significant provisions under the Act are the provisions on rest period and
rest days for domestic workers, which is absent in the Labor Code.
Specifically, domestic workers are entitled to an aggregate daily rest period
of at least 8 hours per day and a rest day of at least 24 consecutive hours per
week. Compared with the domestic worker’s 24-hour rest day, which should be
consecutively enjoyed, the daily 8-hour rest period of the domestic work need
only be cumulative. Further, a domestic worker who has rendered at least a year
of service shall be entitled to an annual service incentive leave of 5 days with
pay, which is non-cumulative and non-convertible to cash. This will hopefully
encourage domestic workers to enjoy their time off and be with their respective
families.
Employment
Contract
The
Act further requires employers to execute employment contracts with their
domestic workers, which should state the minimum terms and conditions of
employment provided therein (i.e., the duties and responsibilities of the
domestic worker, period of employment, compensation, authorized deductions,
hours of work, rest days and allowable leaves, agreement on deployment
expenses, if any, termination of employment, and any other lawful condition
agreed upon by both parties). Unlike the Labor Code and the Civil Code, which
expressly limit the original term of employment to 2 years, the Act leaves the
period of employment entirely up to the parties. Once executed, a copy of the
duly signed contract must be given to the domestic worker.
Pre-Employment Requirements
Prior
to the execution of the employment contract, employers may require the
following documents from the domestic worker, with the employer shouldering the
costs therefor: (a) medical certificate or a 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,
any other document showing the age of the domestic worker such as voter’s
identification card, baptismal record or the domestic worker’s passport.
Reportorial
Duties of Employers
Employers
are now required by law to register their domestic workers in the Registry of
Domestic Workers in the Barangay where the residence of the employer is
located. This, however, is subject to the formulation by the DILG, in
coordination with the DOLE, of a registration system for this purpose.
Employment
Age of Domestic Workers
Similar
to the previous regime, domestic workers below the age of 18 may still be
employed, provided they are at least 15 years of age and they are given, at the
very least, the minimum wage and benefits provided in the Act.
Termination
of Service
Once
the domestic worker and the employer agree on a specific period of employment,
neither the domestic worker nor the employer may terminate the contract before
the expiration thereof except for the following just causes. If the termination
is initiated by the domestic worker: (a) verbal or emotional abuse of the
domestic worker by the employer or any member of the household; (b) inhuman
treatment including physical abuse of the domestic worker by the employer or
any member of the household; (c) commission of a crime or offense against the
domestic worker 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 in the Act; (e) any disease prejudicial to the health
of the domestic worker, the employer, or member/s of the household; and (f)
other causes analogous to the foregoing.
If the
termination is initiated by the employer, on the other hand, the just causes
are as follows: (a) misconduct or willful disobedience by the domestic worker
of the lawful order of the employer in connection with the former’s work; (b)
gross or habitual neglect or inefficiency by the domestic worker in the
performance of duties; (c) fraud or willful breach of the trust reposed by the
employer on the domestic worker; (d) commission of a crime or offense by the
domestic worker against the person of the employer or any immediate member of
the employer’s family; (e) violation by the domestic worker of the terms and
conditions of the employment contract and other standards set forth in the Act;
(e) any disease prejudicial to the health of the domestic worker, the employer,
or member/s of the household; and (f) other causes analogous to the foregoing.
Should
the domestic worker be unjustly dismissed, he or she shall be paid the
compensation already earned plus the equivalent of 15 days work by way of
indemnity. If the domestic worker leaves without justifiable reason, any unpaid
salary due not exceeding 15 days shall be forfeited. The employer may also
recover from the domestic worker costs incurred in relation to the deployment
expenses, if any, provided the employment is terminated within 6 months from
the date of hiring of the domestic worker.
Lastly,
regardless of the cause of termination, the employer is required to issue a
certificate of employment to the domestic worker, within 5 days from request,
indicating the nature, duration of the service, and work performance.
Prohibition
Against Privileged Communication
Finally,
the Act expressly classifies all communication and information pertaining to
the employer or members of the household as privileged and confidential
communication. Domestic workers are thus expressly prohibited from publicly
disclosing such communication and information during, and even after,
employment. Information obtained in violation of this provision is considered
inadmissible in evidence against the employer or any member of his household
save when the suit pertains to a crime involving the aforesaid persons.
Notably, even the penalty provision of the Act may be invoked against a
domestic worker who violates this privilege.
The
enumeration above is merely a few of the basic rights and privileges which
should be taken note of under the Act. While certain provisions may need
further clarification, the Act will nonetheless be considered effective as of
10 February 2013, except perhaps for provisions which may be expressly conditioned on the passage of the
implementing rules. Since any violation of the Act may subject an employer to a
fine ranging from PhP 10,000.00 to PhP 40,000.00 without prejudice to the
filing of appropriate civil or criminal action, employers would be well-advised
to start observing and complying with the minimum terms and conditions provided
in the Act, without waiting for the issuance of the implementing rules.
