The Legally Inclined Blog

Tuesday, September 17, 2013

PUBLIC-PRIVATE PARTNERSHIP IN CRIME: Plunder

By Obiter07

This is the current and popular term on development, the PPP or public private partnership for government projects. It is timely that we now, as a result of the Priority Development Assistance Fund (PDAF) scam, get to see the darker side of such a partnership which can result in the crime of plunder.

DEFINITION OF PLUNDER

Under Section 2 of REPUBLIC ACT NO. 7080, AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER, “Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State." (As amended by Republic Act No. 7659)

As stated in the law, a private person can be charged for plunder only if he participates with the public officer in the commission of the offense. And we are not concerned with petty amounts here, the ill-gotten wealth should amount to at least P50,000,000. It is hard to even imagine how a public officer can get his hands on such an amount and harder still to think that he had to have access to so much more in order to have something left over to share with his private accomplice.

COMMISSION

And how is this extravagant and despicable crime committed?

“SECTION 1. Definition of Terms. — As used in this Act, the term — xxx

d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof [see above], acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes :

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

2) By receiving,directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;

3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries;

4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking;

5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or

6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. “

EVIDENCE OF COMMISSION

As to how it is proven, it will be enough if a pattern of overt or criminal acts is shown:

“SECTION 4. Rule of Evidence. — For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.”

It appears broad enough to cover any wrongdoing and this is the reason why the law was questioned before the Supreme Court by a former President who was charged and eventually convicted for plunder. One of the issues Joseph Ejercito Estrada raised was that the law was “void for vagueness.” The Supreme Court in ESTRADA, vs. SANDIGANBAYAN, et al. [G.R. No. 148560. November 19, 2001] disagreed and upheld the law, stating that this “doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case.” The Court had this to say on how the crime is established to have been committed:

“The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount of at least P50,000,000.00. There is no need to prove each and every other act alleged in the Information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to at least P50,000,000.00. A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation for a combination or series of overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts.”

PENALTIES

The current issue now brought about by the PDAF scam is whether or not the Senators, once they are charged of plunder, can be suspended as the law provides thus:

“SECTION 5. Suspension and Loss of Benefits. — Any public officer against whom any criminal prosecution under a valid information under this Act in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and other benefits which he failed to receive during suspension, unless in the meantime, administrative proceedings have been filed against him.”

Under the Constitution, lawmakers are immune from arrest but only for crimes punishable by imprisonment of not more than six years (Article VI, Section 11). Plunder is punishable by life imprisonment.

Even if the perpetrators get away with the crime due to prescription, their assets can still be subject to recovery by the government.

“SECTION 6. Prescription of Crimes. — The crime punishable under this Act shall prescribe in twenty (20) years. However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches, or estoppel.”

When the Estrada case was decided more than ten years ago, the Supreme Court already railed against the venalities of public office as epitomized by a President charged with this offense:

“xxx Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office. These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension among our people that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of ferment.”

In 2001, Senator Jose “Jinggoy” Estrada was charged for plunder together with his father, former President Estrada. The older Estrada was convicted and pardoned in 2007 then ran for and was elected Mayor in 2013. The younger Estrada, a re-elected Senator even after being previously charged for plunder, is again charged with the same offense. It almost seems to be a rerun of a bad script with the same ending of a movie which we have already seen before which begins with indignation, moving to conviction, resulting in redemption and then, a mind-boggling, re-election. Let us all make it different this time and stop at incarceration.

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Thursday, August 29, 2013

GIFT CHECK: SEC Office Order No. 394

By Obiter07

At a time when we see profligate spending and scams using the people’s money, it is encouraging to see one government office shunning even the appearance of impropriety. The SEC, in Office Order No. 391 dated 1 July 2013, has established a policy prohibiting the solicitation, acceptance and receipt of gifts:

“II. POLICY ON GIVING AND ACCEPTING OF GIFTS, DONATIONS AND SPONSORSHIP

Section 1. SEC officials and employees shall not, directly or indirectly, solicit, accept or receive any gift and/or benefit for themselves or for others from the following:

“Section 2. The following are EXCEPTIONS to Section 1;

a) Parties, counsel and their agents;

b) Corporations, partnerships, associations and their agents;

c) Suppliers and contractors, and their agents; and

d) Any member of the public transacting business with the Commission.”

The policy is iron-clad. One would think there may be loopholes but the exceptions are likewise clearly defined:

“Section 2. The following are EXCEPTIONS to Section 1;

a. Gifts that may be exchanged between and among SEC officials and employees appropriate to the occasion in which it is given such as Christmas or birthday celebrations; provided that, these gifts are not given in anticipation of, or in exchange for a favor and do not exceed P2,50O in value;

b. Contributions/assistance from the Commission, fellow officials and employees in cases of death, illness, calamities and other similar emergencies;

c. Gifts and/or benefits received by the Commission as an institution from other offices, organizations or individuals not covered under Section 1 hereof including grants and donations which are aimed at sustaining or enhancing SEC programs and services, as well- as gifts and benefits for official functions/events like Christmas, Labor Day, Founding Anniversary, Independence Day Celebrations; provided that, the gifts and/or benefits that were delivered in the work place and valued at Ten Thousand Pesos (P10,000.00) or more shall be recorded in the Registry Book of Gifts to be maintained and kept in the custody of the Assistant Director of the General Services Division of the Human Resources & Admin. Department (“GSD-HRAD");

d. Gifts or cash awards given by the Commission to SEC officials and employees during Anniversary, Christmas celebrations and other related official or milestone events and those covered by an appropriate Collective Negotiation Agreement;

e. Gifts that may be exchanged between and among members of the Inter-Agency Committees and other organizations to which the SEC is a member, provided that gifts received amounting to Five Thousand Pesos (P5,000.00) or more shall likewise be recorded in the Registry Book of Gifts by the Assistant Director of the Gso-HRAD;

f. Performance-based cash rewards, scholarship grants, and similar benefits granted to SEC officials and employees by other government agencies, private institutions, or national or international organizations; and

g. Unsolicited gifts or tokens of nominal or insignificant value offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage in accordance with Section 14 of Republic Act No. 3019 and Section 3 (d) of RA 6713.” [Underscoring supplied]

The last item above may seem to provide an avenue for token gifts from private parties but even this is defined to be a gift the value of which “should not exceed Five Hundred Pesos (P500.00)” (Part I, Definition of Terms). And if someone is creative enough to disguise the gift as something for sale, this will still be caught under the policy. A gift is defined as “a thing disposed of gratuitously, in favor of another, and shall include a simulated sale, or a disposition onerous to the giver and/or unduly beneficial to the recipients.” A benefit “refers to a right, privilege, entertainment, exemption or any other similar act of liberality in favor of another.”

Neither can an SEC official “pad” the fees due them or the office.

“Section 3. In the course of the performance of their official functions, SEC officials and employees shall not accept any fee or remuneration beyond what they are legally entitled to receive in their official capacity in accordance with law. However, they may receive plaques, awards, certificates, souvenirs or other tokens of appreciation or gratitude as appropriate to the occasion/ceremonies in which it is made, provided that such plaques, awards or certificates will not be perceived as intended to influence SEC officials and employees in the performance of their official functions.” [Underscoring supplied]

What happens if a party persists and sends a gift? Not all is lost, as this will end up with charitable organizations or the indigent.

“Section 4. All other gifts not mentioned in Sections 2 and 3 hereof shall not be accepted and shall be immediately returned to the giver. In circumstances where it is considered inappropriate or impractical to return said gifts (e.g. perishable goods), or where the giver/sender is nowhere to be found despite diligent inquiry, the SEC official or employee concerned shall immediately turn over the same to the Asst. Director of GSD-HRAD, who shall acknowledge the same and record such gifts in the Registry Book of Gifts and dispose the same in the name of the Commission in favor of charitable organizations, schools, or any other appropriate institutions or organizations including indigent families.” [Underscoring supplied]

Any violation will be dealt with in accordance with applicable law, rule or regulation as the Order only serves to supplement existing laws, rules and regulations on giving and accepting gifts and/or benefits (Part III, Penalties). The Order specifically mentions that it was established in compliance with the 1987 Constitution and the following laws:

1. R.A. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees),

2. R.A. 9485 (Anti-Red Tape Act of 2007),

3. R.A. 3019 (Anti-Graft And Corrupt Practices Act),

4. Secs. 46 (a) and (b)(9) Title I, Subtitle A, Chapter 5, Book V, Executive Order No. 292 (1987 Administrative Code),

5. P.D. 46 (Making It Punishable For Public Officials And Employees To Receive, And For Private Persons To Give, Gifts On Any Occasion, Including Christmas), and

6. SRC Rule 6.2 (6)(E)(i) of the Implementing Rules and Regulations of the Securities Regulation Code.

It may be better to give than to receive. But both are no longer allowed at the SEC as no party can give, and no SEC official can receive, unauthorized gifts and/or benefits.

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Tuesday, July 30, 2013

HOUSE RULES (The Kasambahay law)

By Siesta-friendly

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.

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,

3) cook,

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)

Pre-employment

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)

Employment Contract

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;

3) Compensation;

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.

Registration

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 13^th 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)

Dispute Settlement

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)

Penalties

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.

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