Kasambahay Law

KASAMBAHAY LAWRepublic Act No. 10361

Effective February 3, 2013

SHORT VIDEO

BACKGROUND

• Approximately 2M domestic helpers (as of October 2012)

• Labor Code, as supplemented by provisions of the Civil Code

• ILO Convention No. 189, ratified on August 2012, effective September 2013

STATE POLICIES

• Abolish child labor• Eliminate forced labor, discrimination

and trafficking• Establish labor standards for

domestic workers• Enhance coverage of social

protection• Protect rights of domestic workers

OTHER PURPOSES

• Fill the gaps in the Labor Code• Professionalize the relationship

between the kasambahay and employers

• Inform and orient parties of their rights and obligations

• Give teeth to government agencies

COVERAGE

All domestic workers employed and working within the country (Sec. 2)

Kasambahay, defined

Any person engaged in domestic work (def. work performed in or for a household) within an employment relationship such as, but not limited to, the following:

- general househelp- nursemaid or “yaya” - cook- gardener - laundry person

Excluding: Any person who performs domestic work only occasionally or sporadically and not on an occupational basis. (Sec. 4(d))IRR, Rule XIII, Section 1(b), Book 3: 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.

Kasambahay, defined

Also excluded:

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. (Sec. 4(d))

RIGHTS AND PRIVILEGES

I. Not to be subjected to any kind of abuse nor be inflicted any form of physical violence or harassment or any act tending to degrade the his/her dignity. (Sec. 5)

LC: Art. 147. Treatment of househelpers. The employer shall treat the househelper in a just and humane manner. In no case shall physical violence be used upon the househelper.

CC: Art. 1694. The head of the family shall treat the house helper in a just and humane manner. In no case shall physical violence be used upon the house helper.


II. To receive basic necessities, including 3 adequate meals a day and humane sleeping arrangements that ensure safety. (Sec. 6, par. 1)

III. To appropriate rest and assistance incase of illnesses and injuries sustained during service without loss of benefits. (Sec. 6, par. 2)

LC: Art. 148. Board, lodging, and medical attendance. The employer shall furnish the househelper, free of charge, suitable and sanitary living quarters as well as adequate food and medical attendance.

CC: Art. 1690. The head of the family shall furnish, free of charge, to the house helper, suitable and sanitary quarters as well as adequate food and medical attendance.


IV. Right to privacy extending to all forms of communications and personal effects. (Sec. 7)

V. Access to outside communication during free time.

- In case of emergency, access is allowed even during work time.

- costs are to be borne by the kasambahay (Sec. 8)


VI. 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. “(Sec. 9)

LC: Art. 146. Opportunity for education. If the househelper is under the age of eighteen (18) years, the employer shall give him or her an opportunity for at least elementary education. The cost of education shall be part of the househelper’s compensation, unless there is a stipulation to the contrary.

CC: Art. 1691. If the house helper is under the age of eighteen years, the head of the family shall give an opportunity to the house helper for at least elementary education. The cost of such education shall be a part of the house helper's compensation, unless there is a stipulation to the contrary.

DUTIES

I. Render satisfactory service at all times (Sec. 7)

II. Maintain confidentiality of information pertaining to the employer or members of the household during and after employment. (Sec. 10)

All communication and information pertaining to the employer or members of the household 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)

“Kasambahay-Amo Privilege”

PRE-EMPLOYMENT

I. Minimum age requirement: 15 years (Sec. 16)

Working children shall:o be entitled to the minimum wage and other benefits in

the Kasambahay Law.o not be allowed to work for more than 8 hours a day,

and in no case beyond 40 hours a week (Sec. 12-A, RA 7610)

o not engage in work that is hazardous or likely to be harmful to the health, safety or morals of children (Sec. 12-D, RA 7610)

o have access to at least primary and secondary education (Sec. 13, RA 7610)

PRE-EMPLOYMENT

II. Documentary requirements (optional for direct employers, mandatory for PEAs):

(a) Medical certificate or a health certificate issued by a local government health officer;

(b) Barangay and police clearance;(c) NBI clearance; (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.

Costs shall be borne by prospective employer or PEA (Sec. 12)

I. Charging of recruitment and finder’s fees against the domestic worker (Sec. 13)

II. Deposits for loss or damage (Sec. 14)III. Debt Bondage (Sec. 15)- refers to the rendering of service by the domestic worker

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. 4(a))

PROHIBITED PRACTICES

CC: Art. 1703. No contract which practically amounts to involuntary servitude, under any guise whatsoever, shall be valid.

RPC: Art. 274. Services rendered under compulsion in payment of debt. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, in order to require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as household servant or farm laborer.

REPORTORIAL DUTIES

Employers are required to register all domestic workers under their employment in the Registry of Domestic Workers in the barangay where the employer’s residence is located.* (Sec. 17)

CONDITIONS OF EMPLOYMENT

I. Daily Rest Period: aggregate of 8 hours (Sec. 20)

II. Weekly rest period: at least 24 consecutive hours (Sec. 21)

Preference of kasambahay when based on religious grounds shall be respected

Kasambahay and employer may agree on: Offsetting a day of absence Accumulating (not exceeding 5 days) Waiving in exchange for an equivalent daily rate

CC: Art. 1695. House helper shall not be required to work more than ten hours a day.


III. Assignment to non-household work:

The domestic worker shall be entitled to the applicable minimum wage provided for agricultural or non-agricultural workers, as the case may be. (Sec. 22)


IV. Assignment to another household:

Must be mutually agreed upon by domestic worker and employer

Must be temporary Any liability incurred by the domestic worker shall be

borne by the original employer Kasambahay is entitled to additional payment of not

less than existing min. wage of a domestic worker The original employer cannot charge any amount from

the said household where the service of the domestic worker was temporarily performed (Sec. 23)


V. Minimum wage:

A. NCR – Php 2,500/monthB. Chartered cities and first-class municipalities

– Php 2,000/monthC. Other municipalities – Php 1,500/month

The Regional Tripartite and Productivity Wage Boards (RTPWB) may review and adjust the minimum wage rates of domestic workers. (Sec. 24)


VI. Payment of Wages:

Must be in cash At least once a month No deductions without written consent of

kasambahay, except those mandated by law (Sec. 25)

VI-A. Mandatory Issuance of Pay Slip Shall contain amount paid in cash every pay day

and indicate all deductions Retention period for employer: 3 years (Sec. 26)


VII. Non-interference in the disposal of wages (Sec. 27)

VIII. Prohibition against withholding of wagesDirectly or indirectlyException: If domestic worker leaves

without justifiable reason, any unpaid salary not exceeding 15 days shall be forfeited (Sec. 28)


IX. Service incentive leave benefits: 5 days with pay per annum

Kasambahay must have rendered at least 1 year of service

Non-cumulativeNon-commutable (Sec. 29)


X. Social benefits: SSS, PhilHealth, Pag-IBIG

Kasambahay must have rendered at least 1 month of service

If monthly salary is below Php 5,000, employer shoulders contributions

If Php 5,000 and above, kasambahay pays the proportionate share (Sec. 30)


XI. Non-diminution of benefits (Sec. 41)

EMPLOYMENT CONTRACT

• Executed at the commencement of the service

• In a language or dialect understood by both the kasambahay and the employer

• Kasambahay shall be provided a duly signed copy of the contract

• PEAs shall keep copies of all ECs of kasambahays whose employment they facilitated (Sec. 11)

LC: Art. 142. Contract of domestic service. The original contract of domestic service shall not last for more than two (2) years but it may be renewed for such periods as may be agreed upon by the parties.

CC: Art. 1692. No contract for household service shall last for more than two years. However, such contract may be renewed from year to year.

CONTENTS OF EC

1) Duties and responsibilities of the domestic worker;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; and11)Any other lawful condition agreed upon by both parties

(Sec. 11)C189, Article 7 …(a) the name and address of the employer and of the worker;(b) the address of the usual workplace or workplaces;(c) the starting date and, where the contract is for a specified period of time, its duration;(d) the type of work to be performed;(e) the remuneration, method of calculation and periodicity of payments;(f) the normal hours of work;(g) paid annual leave, and daily and weekly rest periods;(h) the provision of food and accommodation, if applicable;(i) the period of probation or trial period, if applicable;(j) the terms of repatriation, if applicable; and(k) terms and conditions relating to the termination of employment, including any period of notice by either the domestic worker or the employer.

Insert Employment Contract

POST-EMPLOYMENT

• SEC. 32. Termination of Service. • Neither the domestic worker nor the

employer may terminate the contract before the expiration of the term except for grounds provided for in Sections 33 and 34 of this Act.

• unjustly dismissed- domestic worker shall be paid the compensation already earned plus the equivalent of fifteen (15) days work by way of indemnity

POST-EMPLOYMENT

• domestic worker leaves without justifiable reason- any unpaid salary due not exceeding the equivalent fifteen (15) days work shall be forfeited. In addition, the employer may recover from the domestic worker costs incurred related to the deployment expenses, if any: Provided, That the service has been terminated within six (6) months from the domestic worker’s employment.

LABOR CODE

• Art. 149. Indemnity for Unjust Termination of Services

• If period fixed- neither may pre-terminate except for a just cause.

• If househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for fifteen (15) days by way of indemnity.

• If househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or her not exceeding (15) days.

POST-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 domestic worker may give notice to end the working relationship five (5) days before the intended termination of the service.

• The domestic worker and the employer may mutually agree upon written notice to pre-terminate the contract of employment to end the employment relationship.

LABOR CODE

• Art. 150. Service of Termination Notice

• If the duration of the household service is not determined whether in stipulation or by the nature of the service, the employer or the househelper may give notice to put an end to the relationship five (5) days before the intended termination of the service.

POST-EMPLOYMENT• SEC. 33. Termination Initiated by the Domestic Worker. The

domestic worker may terminate the employment relationship at any time before the expiration of the contract for any of the following causes:

• (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 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.

LABOR CODE

• Art. 285. Termination by Employee• without just cause, serve written notice on

the employer at least one month in advance. • Without serving any notice: (just causes)• 1. Serious Insult by the employer or his

representative on the honor and person of the employee

• 2. Inhuman and unbearable treatment• 3. Commission of a Crime • 4. Analogous Causes

POST-EMPLOYMENT• SEC. 34. Termination Initiated by the Employer. – An employer may

terminate the services of the domestic worker at any time before the expiration of the contract, for any of the following 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.

LABOR CODE

• Art. 282. Termination by Employer• 1. Serious Misconduct or willful Disobedience• 2. Gross and Habitual Neglect • 3. Fraud or willful breach of trust• 4. Commission of a Crime or Offense• 5. Analogous causes • Art. 283. Authorized Causes:• 1. Automation• 2. Redundancy• 3. Retrenchment• 4. Closure or Cessation• Art. 284. Disease as Ground for Termination

NOTICE REQUIREMENT

LABOR CODE• TWO-NOTICE

REQUIREMENT FOR THE “JUST” AND “AUTHORIZED” CAUSES

DOMESTIC WORKERS ACT

• If the duration of the domestic service is not determined either in stipulation or by the nature of the service, the employer or the domestic worker may give notice to end the working relationship five (5) days before the intended termination of the service.

POST-EMPLOYMENT

• SEC. 35. Employment Certification-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.

LABOR CODE

• Art. 151. Employment Certification

• Upon the severance of the household service relation, the employer shall give the househelper a written statement of the nature and duration of the service and his or her efficiency and conduct as househelper.

PRIVATE EMPLOYMENT AGENCIES

• SEC. 36. Regulation of Private Employment • The PEA shall be jointly and severally liable

with the employer for all the wages, wage-related benefits, and other benefits due a domestic worker.

• The provision of the Labor Code on qualifications of the PEAs with regard to nationality, networth, owners and officers, office space and other requirements, as well as nontransferability of license and commission of prohibited practices, shall apply.

PRIVATE EMPLOYMENT AGENCIES

• In addition, PEAs shall have the following responsibilities:• (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;

• (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.

SETTLEMENT OF DISPUTES

• SEC. 37. 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.

• 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.

LABOR CODE

• Art. 217 Jurisdiction of the Labor Arbiters and the Commission- Except claims for Employees Compensation, SSS, Medicare, and maternity benefits, claims involving an amount exceeding P5,000 regardless of whether accompanied with a claim for reinstatement.

• Art. 129. Recovery of wages, simple money claims and other benefits. Claims not exceeding P5,000. Provided, that such complaint does not include a claim for reinstatement.

ADMINISTRATIVE PROVISIONS

• SEC. 18. 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.

• SEC. 31. Rescue and Rehabilitation of Abused Domestic Workers. – 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.

• SEC. 42. Implementing Rules and Regulations- within 90 days from effectivity of this Act, Dole Secretary, DWSD Secretary, DILG Secretary, Director general of PNP, in coordination with other government agencies/NGO’s shall promulgate IRR.

SPECIAL PROVISIONS

• SEC. 38. Information Program. – The DOLE shall, in coordination with the DILG, the SSS, the PhilHealth and Pag-IBIG develop and implement a continuous information dissemination program on the provisions of this Act, both at the national and local level, immediately after the enactment of this law.

• SEC. 39. “Araw Ng Mga Kasambahay”. – The date upon which the President shall approve this “Domestic Workers Act” shall be designated as the “Araw ng mga Kasambahay”. (January 18)

PENAL AND MISCELLANEOUS PROVISIONS

• SEC. 40. Penalty- – Any violation of the provisions of this Act declared unlawful shall be punishable with a fine of not less than Ten thousand pesos (P10,000.00) but not more than Forty thousand pesos (P40,000.00)

• SEC. 41. Transitory Provision; Non-Diminution of Benefits- All existing arrangements between a domestic worker and the employer shall be adjusted to conform to the minimum standards set by this Act within a period of sixty (60) days after the effectivity of this Act: Provided, That adjustments pertaining to wages shall take effect immediately after the determination and issuance of the appropriate wage order by the RTWPBs: Provided, further, That nothing in this Act shall be construed to cause the diminution or substitution of any benefits and privileges currently enjoyed by the domestic worker hired directly or through an agency.

FINAL PROVISIONS

• SEC. 43. Separability Clause-If any provision or part of this Act is declared invalid or unconstitutional, the remaining parts or provisions not affected shall remain in full force and effect.

• SEC. 44. Repealing Clause-All articles or provisions of Chapter III (Employment of Househelpers) of Presidential Decree No. 442, as amended and renumbered by Republic Act No. 10151 are hereby expressly repealed. All laws, decrees, executive orders, issuances, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

• SEC. 45. Effectivity Clause-This Act shall take effect fifteen (15) days after its complete publication in the Official Gazette or in at least two (2) national newspapers of general circulation. Feb 3, published January 18.

Thank you!

MAAUrsuaFPPTopianco

Kasambahay Law

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