With the enactment of Republic Act No. 10361 (“An Act Instituting Policies For The Protection And Welfare Of Domestic Workers” or the “Domestic Workers Act” Or “Batas
Kasambahay”) we have finally raised the
level of stature of our kasambahay to
that of a legally-recognized and protected employee with corresponding rights,
benefits and privileges.
Tuesday, July 30, 2013
Who are the Kasambahay?
The law defines “Domestic worker” or Kasambahay as any person engaged in domestic work within an employment relationship such as, but not limited to, the following:
1) general househelp,
2) nursemaid or yaya,
4) gardener, or
5) laundry person,
6) any person who regularly performs domestic work in one household on an occupational basis,
and excludes the following from its definition:
1) Service providers,
2) Family drivers,
3) Children under foster family arrangement, and
4) Any other person who performs work occasionally or sporadically and not on an occupational basis. (Sec. 4, R.A. 10361; Rule I, Sec. 2 of the Implementing Rules and Regulations (IRR) of R.A. 10361)
R.A. 10361 also encompasses a kasambahay on a live-out arrangement which is an arrangement where the kasambahay works within the employer’s household but does not reside therein. (Rule I, Sec. 3, IRR)
What is Domestic Work?
Domestic work means work performed in or for a household or households. (Sec. 4 c)
While household means the immediate members of the family or the occupants of the house that are directly provided services by the kasambahay. (Sec. 4 f)
Prior to employment, the employer may require the following from the kasambahay:
a) Medical certificate or a health certificate issued by a local government health officer;
b) Barangay and police clearance;
c) National Bureau of Investigation (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 passport.
These 4 requirements are standard requirements when the employment is facilitated through the private employment agency (PEA). And the cost of the requirements shall be borne by the prospective employer or agency, as the case may be. (Sec. 12)
The employment contract shall be signed by the kasambahay and the employer before the start of the service in a language or dialect understood by both. The domestic worker shall be provided a copy of the duly signed employment contract which must include the following:
1) Duties and responsibilities of the kasambahay;
2) Period of employment;
4) Authorized deductions;
5) Hours of work and proportionate additional payment;
6) Rest days and allowable leaves;
7) Board, lodging and medical attention;
8) Agreements on deployment expenses, if any;
9) Loan agreement;
10) Termination of employment; and
11) Any other lawful condition agreed upon by both parties. (Sec. 11)
Deployment expenses mean “expenses that are directly used for the transfer of the domestic worker from place of origin to the place of work covering the cost of transportation.” (Sec. 4 b)
A sample employment contract may be found here and downloadable from the Bureau of Working Conditions’ homepage.
Employers shall register all kasambahay under their employment in the Registry of Domestic Workers in the barangay where the employer’s residence is located. (Sec. 17)
Rights and Privileges of the Kasambahay
1) Minimum age. No person below 15 years of age can be employed as kasambahay. (Sec. 16)
Working children (15 years old and above but below 18) are entitled to minimum wage and all benefits provided under RA. 10361. (Sec. 16 and Sec. 4 h)
2) Rights of Working Children. Working Children shall not be subjected to the following:
1) work for more than 8 hours a day and beyond 40 hours a week;
2) work between 10:00 p.m. and 6:00 a.m the following day;
3) work which is hazardous or likely to be harmful to the health, safety or morals of children (Rule VI, Sec. 2, IRR)
3) Standard of Treatment. The employer shall not subject them to any kind of abuse nor inflict upon them any form of physical violence or harassment or any act tending to degrade their dignity. (Sec. 5).
The employer shall safeguard the health and safety of the kasambahay in accordance with laws, rules and regulations, with due consideration of the peculiar nature of domestic work. (Sec. 19)
4) Board, Lodging and Medical Attendance. The employer shall provide for their basic necessities (which shall not be withdrawn or held in abeyance as punishment or disciplinary action) including:
a. at least 3 adequate meals a day,
b. humane sleeping arrangements that ensure safety, and
c. appropriate rest and assistance in case of illnesses and injuries sustained during service without loss of benefits. (Sec. 6)
In the case of a kasambahay on a live-out arrangement, he/she should be provided space for rest and access to sanitary facility. (Rule IV, Sec. 13, IRR)
5) Daily Rest Period. The kasambahay shall be entitled to an aggregate daily rest period of 8 hours per day. (Sec.20)
6) Weekly Rest Period. The kasambahay shall be entitled to at least 24 consecutive hours of rest in a week. The employer and the kasambahay shall agree in writing on the schedule of the weekly rest day of the domestic worker. The employer shall respect the preference of the domestic worker as to the weekly rest day when such preference is based on religious grounds. Nothing shall deprive the domestic worker and the employer from agreeing to the following:
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 5 days; or
d. Other similar arrangements. (Sec. 21)
7) Minimum Wage. The minimum wage of domestic workers shall not be less than the following:
a. P2,500.00 a month for those employed in the National Capital Region (NCR);
b. P2,000.00 a month for those employed in chartered cities and first class municipalities; and
c. P1,500.00 a month for those employed in other municipalities. (Sec. 21)
8) Applicable Minimum Wage for Non-household Work. No kasambahay shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage rate lower than that provided for agricultural or nonagricultural workers. In such cases, the kasambahay shall be paid the applicable minimum wage. (Sec. 22)
9) Payment of Wages at least Once a Month. Payment of wages shall be made on time directly to the kasambahay to whom they are due in cash at least once a month. The employer, unless allowed by the kasambahay through a written consent, shall make no deductions from the wages other than which is mandated by law. No employer shall pay the wages of a kasambahay by means of promissory notes, vouchers, coupons, tokens, tickets, chits, or any object other than the cash wage as provided for by R.A. 10361. (Sec. 25)
10) Deductions for Loss or Damage. Other than those mandated by law, the employer shall not deduct any amount from the kasambahay’s wages without the latter’s written consent; and in the case of such consent, the deduction should still meet the following conditions:
1) the kasambahay is clearly shown to be responsible for the loss or damage;
2) the kasambahay is given reasonable opportunity to show cause why the deduction should not be made;
3) the total deduction is fair and reasonable and shall not exceed the actual loss or damage; and
4) the deduction does not exceed 20% of the kasambahay’s monthly wage. (Rule V, Sec. 6, IRR)
11) Thirteenth Month pay. The kasambahay is entitled to a thirteenth month pay as provided for by law. (Sec. 25)
The 13th month pay shall be paid not later than December 24 each year or upon separation from employment. (Rule IV, Sec. 8, IRR)
12) Prohibition Against Withholding of Wages. The employer shall not, directly or indirectly, withhold the wages of the kasambahay. If the kasambahay leaves without any justifiable reason, any unpaid salary for a period not exceeding 15 days shall be forfeited. The employer shall not induce the kasambahay to give up any part of the wages by force, stealth, intimidation, threat or by any other means whatsoever. (Sec. 28)
13) Copy of Pay Slip. The employer shall at all times provide the kasambahay with a copy of the pay slip containing the amount paid in cash every pay day, and indicating all deductions made, if any. The copies of the pay slip shall be kept by the employer for a period of 3 years. (Sec. 26)
14) Prohibition on Interference in the Disposal of Wages. The employer shall not interfere with the freedom of any kasambahay to dispose of his/her wages. The employer shall not force, compel or oblige the kasambahay 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. (Sec. 27)
15) Leave Benefits. A kasambahay who has rendered at least 1 year of service shall be entitled to an annual service incentive leave of 5 days with pay. Any unused portion of the annual leave shall not be cumulative or carried over to the succeeding years. Unused leaves shall not be convertible to cash. (Sec. 29)
16) Social and Other Benefits. A kasambahay who has rendered at least 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 or Pag-IBIG, and shall be entitled to all the benefits in accordance with the pertinent provisions provided by law.
Premium payments or contributions shall be shouldered by the employer. However, if the kasambahay is receiving a wage of P5,000.00 and above per month, he/she shall pay the proportionate share in the premium payments or contributions, as provided by law.
The kasambahay shall be entitled to all other benefits under existing laws. (Sec. 30)
17) No 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, i.e, to have the kasambahay 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. (Sec. 15 and Sec. 4 a)
18) No Deposits. No employer or any other person can 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. (Sec. 14)
19) No Recruitment and Similar Fees. Regardless of whether the kasambahay was hired through a PEA or a third party, no share in the recruitment or finder’s fees shall be charged against the kasambahay. (Sec. 13)
20) Privacy. The employer shall guarantee respect for their privacy at all times. This privacy shall extend to all forms of communication and personal effects. (Sec. 7)
21) Access to Outside Communication. The employer shall grant them access to outside communication during their free time. In case of emergency, access to communication shall be granted even during work time. If the kasambahay makes use of the employer’s telephone or other communication facilities, the costs shall be on the kasambahay, unless they are waived by the employer. (Sec. 8)
22) Right to Education and Training. The employer shall afford them 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 Kasambahay’s work schedule to allow such access to education or training without hampering the services required by the employer. (Sec. 9)
23) Rescue and Rehabilitation of Abused Domestic Workers. Any abused or exploited kasambahay 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 kasambahay, and in coordination with the DOLE, for possible subsequent job placement. (Sec. 31)
24) Temporary Duty for Another Household. The kasambahay and the employer may mutually agree for the former to temporarily perform a task that is outside the latter’s household for the benefit of another household. However, any liability that will be incurred by the kasambahay on account of such arrangement shall be borne by the original employer. In addition, such work performed outside the household shall entitle the kasambahay to an additional payment 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 kasambahay was temporarily performed. (Sec. 23)
This temporary work for another household shall not exceed 30 days per assignment. And the other household where he kasambahay is temporarily assigned is solidarily liable for any nonpayment of wages during such temporary assignment. (Rule V, Sec. 11, IRR)
25) Employment Certification. Upon termination of employment, the employer shall issue the kasambahay within 5 days from request a certificate of employment indicating the nature, duration of the service and work performance. (Sec. 35)
26) Right to form, join, assist a labor organization (Rule IV, Sec. 1, IRR) The kasambahay shall be given the opportunity to attend organization meetings during free time. (Rule IV Sec. 17, IRR)
27) Right to exercise their own religious beliefs and cultural practices. (Rule IV, Sec. 1, IRR)
28) Non-Diminution of Benefits. All existing arrangements between the kasambahay and the employer shall be adjusted to conform to the minimum standards set by R.A.10361 within 60 days after the effectivity of R.A. 10361. But adjustments pertaining to wages shall take effect immediately after the determination and issuance of the appropriate wage order by the Regional Tripartite Wages and Productivity Boards (RTWPBs). And nothing in R.A. 10361 shall be construed to cause the diminution or substitution of any benefits and privileges currently enjoyed by the kasambahay hired directly or through an agency. (Sec. 41)
Responsibilities of PEAs
In connection the rights and privileges of the kasambahay, it is important to know the PEAs responsibilities (Sec. 36):
1) Ensure that the kasambahay are not charged or levied any recruitment or placement fees;
2) Secure the best terms and conditions for the kasambahay’s employment (Rule III, Sec. 3 b, IRR) ;
3) Ensure that the employment agreement stipulates the terms and conditions of employment and all the benefits prescribed by R.A. 10361;
4) Provide a pre-employment orientation briefing to the kasambahay and the employer about their rights and responsibilities in accordance with RA. 10361;
5) Ensure that the kasambahay is not charged or required to pay any recruitment or placement fees (Rule III, Sec. 3 e, IRR);
6)Keep copies of employment contracts and agreements pertaining to recruited the kasambahay which shall be made available during inspections or whenever required by the DOLE or local government officials;
7) Assist the kasambahay with respect to complaints or grievances against their employers;
8) Cooperate with government agencies in rescue operations involving abused or exploited the kasambahay; and
9) Assume joint and solidary liability with the employer for the payment of wages, wage-related and other benefits, including SSS, Philhealth and Pag-ibig contributions (Rule III, Sec. 3 I, IRR).
Rights of Employers
1) To require submission of pre-employment requirements (Rule V, Sec. 1 and Rule II, Sec. 4, IRR)
2) To recover deployment expenses (Rule V, Sec. 1 and Rule II, Sec. 3, IRR)
3) To demand replacement (Rule V, Sec. 1 and Rule III, Sec. 4, IRR)
4) To terminate employment (Rule V, Sec. 1 and Rule VII, Sec. 3, IRR)
5) Privileged Communication. 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 kasambahay 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. (Sec. 10)
Termination of Service
The kasambahay may not terminate the contract before the expiration of the term except for the following grounds (meaning the contract may be terminated at any time should the following occur):
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 R.A. 10361;
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. (Sec. 33)
On the other hand, the employer may not terminate the contract before the expiration of the term except for 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 this 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. (Sec. 34)
Pregnancy and miscarriage are not valid grounds for termination of employment. (Rule VII, Sec 4, IRR)
If the kasambahay is unjustly dismissed, he/she shall be paid the compensation already earned plus the equivalent of 15 days’ work by way of indemnity.
If the kasambahay leaves without justifiable reason, any unpaid salary due not exceeding the equivalent 15 days’ work shall be forfeited. In addition, the employer may recover from the kasambahay costs incurred related to the deployment expenses, if any; provided that the service was terminated within 6 months from the kasambahay’s employment.
If the duration of the domestic service is not determined either in stipulation or by the nature of the service, the employer or the kasambahay may give notice to end the working relationship 5 days before the intended termination of the service.
The kasambahay and the employer may mutually agree upon written notice to pre-terminate the contract of employment to end the employment relationship. (Sec. 32)
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. (Sec. 37)
Any violation of R.A. 10361 declared unlawful shall be punishable with not less than P10,000.00 but not more than P40,000.00 without prejudice to the filing of appropriate civil or criminal action by the aggrieved party. (Sec. 40)
The law’s requirements can be quite burdensome. If the kasambahay does not have the appropriate papers such as a birth certificate, what happens then?
It seems that employers who used to pay less than the now minimum wage set by R.A. 10361 are now required to pay the minimum wage from the time the kasambahay were employed with them. That may mean years or decades of less-than-minimum-wage pay. So households now seem to be required to pay arrears for which they may not have the budget.
How many kasambahay would be capable of going to and from different government agencies and filling several forms to meet the law’s requirements?
A one-stop-shop at the barangay level where everything can be filed, including SSS, Philhealth and Pag-ibig applications, would have been helpful. Requiring households to accomplish what any business is required to do for their employees is easier said than done. Individual households don’t have messengers to do the required legwork. Who’s supposed to do line up half a day at the SSS and other government agencies while the employers are at work, and there’s lots of household work to be done and kids to take care of?
While the law has enabled us to progress from simpler days when a helper was treated as a mere family member to now treating them as legally-protected employees, our lawmakers seem to have forgotten that the employers and employees here are mere household folks who may likely not have the necessary resources to easily comply with the law.