Kasambahay Law.docx

Angala, Miguel Eugenio Balbas, Mia Frances Laza, Manuel Adolfo Salarza, Julius Cesar REPUBLIC ACT NO. 10361 AN ACT INSTITUTING POLICIES FOR THE PROTECTION AND WELFARE OF DOMESTIC WORKERS (Domestic Workers Act or Batas Kasambahay) GENERAL PROVISIONS Applicability of the Law The Domestic Workers Act applies only to domestic workers working within the Philippines. 1 Meaning of Domestic Worker Domestic worker or “Kasambahay” is a person engaged to work for a household within an employment relationship.2 Examples are: general househelp, nursemaid or “yaya”, cook, gardener, or laundry person. Thus, to be considered as a domestic worker, one should be hired specifically to perform household work. In the absence of specific engagement, one cannot be considered as a domestic worker. Persons who perform domestic work occasionally and not on an occupational basis are not considered as domestic workers. Thus, children who are under foster family arrangement, and are provided access to education and given an allowance incidental to education, i.e. “baon”, transportation, school projects and school activities are not considered domestic workers. 3 In the same vein, children or relatives of the domestic worker who live under the employer’s roof and share the same accommodations provided for the domestic worker cannot be considered as domestic workers if they were not engaged as such and are not required to perform any substantial household work. Cases: APEX MINING CO. vs. NLRC G.R. No. 94951, April 22, 1991 Facts: Private respondent Sinclita Candida was employed by petitioner Apex Mining Company to perform laundry services at its staff house. While she was attending to her assigned task, she accidentally slipped and hit her back on a stone. As a result of the accident she was not able to continue 1 Sec. 3, Domestic Workers Act. 2 Sec. 4(d), ibid. 3 Ibid.

with her work. She was permitted to go on leave for medication. De la Rosa offered her P5,000.00 to persuade her to quit her job, but she refused the offer and preferred to return to work. Petitioner did not allow her to return to work and dismissed her. Candida thus filed an illegal dismissal case against Apex Mining. The main defense interposed by Apex Mining is that Candida should be treated as a mere househelper or domestic servant and not as a regular employee. Issue: Whether or not Candida is considered as a domestic worker. Ruling:

No, Candida is not a domestic worker but a regular employee of Apex Mining.

Under Rule XIII, Section l(b), Book 3 of the Labor Code, as amended, the terms "househelper" or "domestic servant" are defined as follows: The term "househelper" as used herein is synonymous to the term "domestic servant" and shall refer to any person, whether male or female, who renders services in and about the employer's home and which services are usually necessary or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the employer's family.” While it is true that the nature of work performed by Candida as laundrywoman in the staff house is similar to the work of a domestic worker, still she could not be classified as such because she was not working for a household but for a corporation. The mere fact that Candida worked within the premises of Apex Mining is an indication that Candida is a regular employee and not a mere domestic worker.

BARCENAS vs. NLRC G.R. No. 87210, July 16, 1990 Facts: Barcenas was hired by Manila Buddhist Temple as secretary and interpreter. Her position required her to receive and assist Chinese visitors to the temple, act as tourist guide for foreign Chinese visitors, attend to the callers of the Head Monk as well as to the food for the temple visitors, run errands for the Head Monk such as paying utility bills, and act as liaison in some government offices. After the death of the Head Monk, Barcenas’ monthly allowance was discontinued and she was forcibly evicted from her quarters in the temple. In a complaint for illegal dismissal filed by Barcenas, the Manila Buddhist Temple claimed that she was not its employee but a domestic worker, who confined herself to the personal needs of the Head Monk, and therefore, her position was coterminous with that of her master. Issue:

Whether or not Barcenas is considered as a domestic worker. Ruling: No, Barcenas is not a domestic worker but a regular employee of Manila Buddhist Temple. The work that Barcenas performed in the temple could not be categorized as mere domestic work. Indeed, these tasks may not be deemed activities of a household helper. They were essential and important to the operation and religious functions of the temple. Minimum Age for Employment of Domestic Workers The minimum age for employment of domestic workers is 15 years old. It is unlawful to employ any person below 15 years of age as a domestic worker. 4 RIGHTS AND PRIVILEGES The following are the rights and privileges accorded to a domestic worker: 1. Right to humane treatment. The employer or any member of the household shall not subject a domestic worker or “kasambahay” to any kind of abuse nor inflict any form of physical violence or harassment or any act tending to degrade the dignity of a domestic worker. 5 Note: Any abused or exploited domestic worker shall be immediately rescued by a municipal or city social welfare officer or a social welfare officer from the Department of Social Welfare and Development (DSWD) in coordination with the concerned barangay officials. The DSWD and the DILG shall develop a standard operating procedure for the rescue and rehabilitation of abused domestic workers, and in coordination with the DOLE, for possible subsequent job placement. 6 2. Right to basic necessities. The employer shall provide for the basic necessities of the domestic worker to include at least three (3) adequate meals a day and humane sleeping arrangements that ensure safety. The employer shall provide appropriate rest and assistance to the domestic worker in case of illnesses and injuries sustained during service without loss of benefits. At no instance shall the employer withdraw or hold in abeyance the provision of these basic necessities as punishment or disciplinary action to the domestic worker. 7 3. Right to privacy. Respect for the privacy of the domestic worker shall be guaranteed at all times and shall extend to all forms of communication and personal effects. This guarantee equally recognizes that the domestic worker is obliged to render satisfactory service at all times. 8 4 Sec. 16, Domestic Workers Act. 5 Sec. 5, ibid. 6 Sec. 31, ibid. 7 Sec. 6, ibid. 8 Sec. 7, ibid.

4. Access to outside communication. The employer shall grant the domestic worker access to outside communication during free time: Provided, That in case of emergency, access to communication shall be granted even during work time. Should the domestic worker make use of the employer’s telephone or other communication facilities, the costs shall be borne by the domestic worker, unless such charges are waived by the employer. 9 5. Right to education and training. The employer shall afford the domestic worker the opportunity to finish basic education and may allow access to alternative learning systems and, as far as practicable, higher education or technical and vocational training. The employer shall adjust the work schedule of the domestic worker to allow such access to education or training without hampering the services required by the employer. 10 OBLIGATIONS OF DOMESTIC WORKERS Domestic workers are obliged to: a. Render satisfactory service at all times;11 b. Observe the terms and conditions of the employment contract; 12 c. Refrain from publicly disclosing any communication or information pertaining to the employer or members of the household during and after employment. Note: All communication and information pertaining to the employer or members of the household shall be treated as privileged and confidential, and shall not be publicly disclosed by the domestic worker during and after employment. Such privileged information shall be inadmissible in evidence except when the suit involves the employer or any member of the household in a crime against persons, property, personal liberty and security, and chastity.13 PRE-EMPLOYMENT 

Requirements: 1. 2. 3. 4.

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Medical certificate or a health certificate issued by a local government health officer; Barangay and police clearance; National Bureau of Investigation (NBI) clearance; and 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 passport. 14

Contract: – An employment contract shall be executed by and between the domestic worker and the employer before the commencement of the service in a language or dialect understood by

9 Sec. 8, Domestic Workers Act. 10 Sec. 9, ibid. 11 Sec. 7, ibid. 12 Sec. 34, ibid. 13 Sec. 10, ibid. 14 Sec. 12, ibid.

both the domestic worker and the employer. The domestic worker shall be provided a copy of the duly signed employment contract, which must include the following: o o o o o o o o o o o

Duties and responsibilities of the domestic worker; Period of employment; Compensation; Authorized deductions; Hours of work and proportionate additional payment; Rest days and allowable leaves; Board, lodging and medical attention; Agreements on deployment expenses, if any; Loan agreement; Termination of employment; and Any other lawful condition agreed upon by both parties. 15

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Recruitment and Finder’s Fees. – Regardless of whether the domestic worker was hired through a private employment agency or a third party, no share in the recruitment or finder’s fees shall be charged against the domestic worker by the said private employment agency or third party. 16

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Deposits for Loss or Damage. – It shall be unlawful for the employer or any other person to require a domestic worker to make deposits from which deductions shall be made for the reimbursement of loss or damage to tools, materials, furniture and equipment in the household. 17

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Prohibition on Debt Bondage. – It shall be unlawful for the employer or any person acting on behalf of the employer to place the domestic worker under debt bondage. 18

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Employment Age of Domestic Workers. – It shall be unlawful to employ any person below fifteen (15) years of age as a domestic worker. Employment of working children, as defined under this Act, shall be subject to the provisions of Section 10(A), paragraph 2 of Section 12-A, paragraph 4 of Section 12-D, and Section 13 of Republic Act No. 7610, as amended, otherwise known as the “Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act”. 19 Working children shall be entitled to minimum wage, and all benefits provided under this Act. Any employer who has been sentenced by a court of law of any offense against a working child under this Act shall be meted out with a penalty one degree higher and shall be prohibited from hiring a working child.

15 Sec. 11, Domestic Workers Act. 16 Sec. 13, ibid. 17 Sec. 14, ibid. 18 Sec. 15, ibid. 19 Sec. 16, ibid.

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Employer’s Reportorial Duties. – The employers shall register all domestic workers under their employment in the Registry of Domestic Workers in the barangay where the employer’s residence is located. The Department of the Interior and Local Government (DILG) shall, in coordination with the DOLE, formulate a registration system for this purpose.20

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Skills Training, Assessment and Certification. – To ensure productivity and assure quality services, the DOLE, through the Technical Education and Skills Development Authority (TESDA), shall facilitate access of domestic workers to efficient training, assessment and certification based on a duly promulgated training regulation. 21 EMPLOYMENT – TERMS AND CONDITIONS

Health and Safety The employers shall safeguard the health and safety of the domestic worker, with due consideration of the peculiar nature of domestic work. 22 Free Board, Lodging and Medical Attendance The employer shall provide for the basic necessities of the domestic worker to include: a) At least three (3) adequate meals a day; b) Humane sleeping arrangements; c) Appropriate rest and assistance in case of illness or injuries sustained during service without loss of benefits. NOTE: Medical attendance is limited to medical treatment for ailments contracted by the househelper while in the service of the employer. 23 It does not include hospitalization. The employer cannot withdraw or hold in abeyance the provision of these basic necessities as punishment or disciplinary action to the domestic worker. 24 Daily Rest Period Domestic workers are entitled to an aggregate daily rest period of eight (8) hours per day. 25 Weekly Rest Period Domestic workers are entitled to a weekly rest period of at least twenty-four (24) consecutive hours. The employer and the domestic worker shall agree in writing on the schedule of the weekly rest day of the domestic worker. The rest day chosen by the domestic worker on religious grounds shall be respected. The domestic worker and the employer can validly agree on the following: a) Offset a day of absence with a particular rest day; 20 Sec. 17, Domestic Workers Act. 21 Sec. 18, ibid. 22 Sec. 19, ibid. 23 Zamora v. Sy. 24 Sec. 6, supra. 25 Sec. 20, ibid.

b) Waive a particular rest day in return for an equivalent daily rate of pay; c) Accumulate rest days not exceeding five (5) days; or d) Other similar arrangements.26 Appropriate compensation for Assignment to Non-Household Work Domestic workers cannot be assigned to work in a commercial, industrial or agricultural enterprise at a wage lower than that provided for agricultural or nonagricultural workers. Domestic workers assigned to work in such establishments shall be paid the applicable minimum wage. 27 Extent of Duty The employer may allow a domestic worker to temporarily perform a task for another household, but any liability that will be incurred by the domestic worker on account of such arrangement shall be borne by the original employer. The domestic worker who temporarily works for another household shall be paid an additional compensation of not less than the existing minimum wage rate of a domestic worker. It shall be unlawful for the original employer to charge any amount from the said household where the service of the domestic worker was temporarily performed.28 Minimum Wage Domestic Workers a) P2,500/month- in the National Capital Region (NCR); b) P2,000/month- in chartered cities and first class municipalities; and c) P1,500/month- in other municipalities. The Regional Tripartite and Productivity Wage Boards (RTPWBs) may from time to time review, determine, and adjust the minimum wage rate of domestic workers. 29 Payment of Wages Wages of domestic workers should be paid: 1) In cash 2) Directly to the domestic worker; and 3) At least once a month. The employer cannot pay the wages of a domestic worker by means of promissory notes, vouchers, coupons, tokens, tickets, chits, or any object other than cash. 30 Pay Slip The employer shall at all times provide the domestic worker with a copy of the pay slip containing the amount paid in cash every pay day, indicating all deductions made, if any. The copies of the pay slip shall be kept by the employer for a period of three (3) years. 31 Thirteenth Month Pay 26 Sec. 21, Domestic Workers Act. 27 Sec. 22, ibid. 28 Sec. 23. ibid. 29 Sec. 24, ibid. 30 Sec. 25, ibid. 31 Sec. 26, Domestic Workers Act.

Domestic workers are entitlted to 13th month pay as provided for by the 13th month pay law.32 Leave Benefits Domestic workers who have rendered at least one (1) year of service shall be entitled to an annual service incentive leave of five (5) days with pay. Unused portion of said annual leave is neither cumulative nor convertible to cash.33 Social Security, PhilHealth and Pag-Ibig Fund Domestic workers who have rendered at least one (1) month of service shall be covered by the Social Security System (SSS), the Philippine Health Insurance Corporation (PhilHealth), and the Home Development Mutual Fund (Pag-IBIG). The premium contributions shall be paid as follows: a) For domestic works who receive a monthly wage of less than P5,000- the employer’s contribution and the domestic worker’s contribution shall be borne solely by the employer; b) For domestic workers who receive a monthly wage of P5,000 and above- the domestic worker and employer shall shoulder their respective premium contributions. 34 POST EMPLOYMENT When can the employment relation can be terminated? If there is just cause – the domestic worker or the employer can terminate the employment relations anytime. If there is no just cause – the domestic worker of the employer can terminate the employment relations: a) At the end of the stipulated period; or b) If no stipulated period – by giving 5 days advance notice. Effect of termination without notice or before the stipulation period If the stipulated period or the 5-day advance notice is not observed, the following are the consequences: On the part of the domestic woker a) He forfeits any unpaid salary equivalent to 15 days; and b) He is liable for the deployment expenses, if the termination is done within six (6) months from hiring. On the part of the employer He is liable for indemnity in an amount equivalent to 15 days pay. 35 The just causes for termination of employment by the domestic worker The domestic worker may validly terminate the employment relationship at any time for any of the following just causes: a) Verbal or emotional abuse of the domestic worker by the employer or any member of the household; 32 Sec. 25, ibid. 33 Sec. 27, ibid. 34 Sec. 28, ibid. 35 Sec. 32, ibid.

b) Inhumane 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 under this law; 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.36 The just causes for termination of employment by the employer The employer can terminate the services of the domestic worker for any of the following just causes: 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 under this law; f) Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household; and g) Other causes analogous to the foregoing.37 Certificate of Employment Upon the severance of the employment relationship, the employer shall issue the domestic worker, within five (5) days from request, a certificate of employment indicating the nature, duration of the service and work performance.38 PRIVATE EMPLOYMENT AGENCIES Liability of private employment agencies Private employment agencies are jointly and severally liable with the employer for all the wages, and other benefits due a domestic worker. 39 Responsibility of private employment agencies The responsibilities of private employment agencies are the following: a) Ensure that domestic workers are not charged or levied any recruitment or placement fees; b) Ensure that the employment agreement between the domestic worker and the employer stipulates the terms and conditions of employment and all the benefits prescribed by this Act; c) Provide a pre-employment orientation briefing to the domestic worker and the employer about their rights and responsibilities in accordance with this Act;

36 Sec. 33, ibid. 37 Sec. 34, ibid. 38 Sec. 35, ibid. 39 Sec. 36, ibid..

d) Keep copies of employment contracts and agreements pertaining to recruited domestic workers which shall be made available during inspections or whenever required by the DOLE or local government officials; e) Assist domestic workers with respect to complaints or grievances against their employers; and f) Cooperate with government agencies in rescue operations involving abused or exploited domestic workers.40 SETTLEMENT OF DISPUTES Mechanism for Settlement of Disputes. – All labor-related disputes shall be elevated to the DOLE Regional Office having jurisdiction over the workplace without prejudice to the filing of a civil or criminal action in appropriate cases. The DOLE Regional Office shall exhaust all conciliation and mediation efforts before a decision shall be rendered. Ordinary crimes or offenses committed under the Revised Penal Code and other special penal laws by either party shall be filed with the regular courts. 41 Araw ng mga Kasambahay January 18 (the date of approval of the law) has been designated as the “Araw ng mga kasambahay”.42 PENAL PROVISIONS Criminal Acts: The Domestic Workers Act declares the following acts as criminal offenses: a) Employing a domestic worker who is below 15 years old; b) Charging by the original employer any amount from the household where the service of his domestic worker was temporarily performed; c) Requiring the domestic worker to make deposits to answer for losses or damage to tools, materials, furniture and equipment in the household; d) Placing the domestic worker under the debt bondage, i.e., requiring the domestic worker to render service as security or payment for a debt where the length and nature of service is not clearly defined or when the value of the service is not reasonably applied in the payment of the debt; e) Interfering with the freedom of the domestic worker to dispose of his wages, or forcing, compelling or obliging the domestic worker to purchase merchandise, commodities or other properties from the employer or from any other person, or otherwise make use of any store or services of such employer or any other person.; f) Withholding the wages of the domestic worker or inducing the domestic worker to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever. Criminal Sanctions

40 Sec. 36, Domestic Workers Act. 41 Sec. 37, Ibid. 42 Sec. 39, Ibid.

The performance of criminal acts will subject the offender to a fine not less than Ten thousand pesos (P10,000.00) but not more than Forty thousand pesos (P40,000). 43

43 Sec. 40, Domestic Workers Act.