LAST JAN. 18, 2013, in fulfillment of the Philippines’ commitment under the International Labor Organization (ILO) Domestic Workers Convention 2011, President Benigno S. C. 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owing to the nature of their services, are likewise included within this definition, as was the case under the now-repealed provisions of the Labor Code.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 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 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.
Apart from enumerating the basic rights of domestic workers, the Act also raises the minimum wage of domestic workers to the following amounts: ₱2,500.00/month for those employed in the National Capital Region, ₱2,000.00/month for those employed in chartered cities and first-class municipalities; and ₱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 pay slips to domestic workers, which should indicate the worker’s salary and all the deductions made, if any. A copy of the pay slip is likewise required to be given to the domestic worker.
Similarly, the Act also makes it mandatory for domestic workers to be enrolled in, or covered by, the SSS, PhilHealth, and the Home Development Mutual Fund or Pag-IBIG, with the employer shouldering the premium payments. However, if the monthly salary of the worker is at least ₱5,000.00, the domestic worker is obliged to pay his or her proportionate share of the premium payments. 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 eight 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 eight-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 five 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.
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. Unlike the Labor Code and the Civil Code, which expressly limit the original term of employment to two 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.
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.
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 Feb. 10, 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 ₱10,000.00 to ₱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. –Amicus Curiae, Aaron Jarveen O. Ho, Businessworld
(Aaron Jarveen O. Ho is an Associate of the Litigation and Dispute Resolution Department of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW). He can be contacted through e-mail firstname.lastname@example.org or at 830-8000.)
– See more at: http://www.bworldonline.com/content.php?section=Opinion&title=Domestic-Workers-Act&id=65399#sthash.kmfm91YB.dpuf