New DoLE guidelines for additional protection of kasambahay

In a recent survey conducted by the Department of Labor and Employment (DoLE) and the Philippine Statistics Authority (PSA), about 1.4 million Filipinos are working as domestic workers or kasambahay. They consist of about 3.2% of the labor force in the Philippines as of October 2020. The kasambahay is often considered an essential member in many households across the country. But despite their important role, however, their benefits under the law are often disregarded.

The recent DoLE-PSA survey revealed substantial violations of Republic Act (RA) No. 10361, or the Batas Kasambahay and its Implementing Rules and Regulations (IRR):

1. About 4% or 49,000 of kasambahay are child domestic workers, 4,900 of whom are below 15 years old.

2. Only 2.5% or 35,455 of kasambahay nationwide have written employment contracts.

3. 83% of the 1.4 million kasambahay are not covered by any social security benefit.

4. Some live-in kasambahay, or about 36%, work seven days a week, without the benefit of a

rest day.

5. The average monthly salary of a kasambahay is P4,141, ranging from P2,681 in he Bangsamoro Autonomous Region in Muslim Mindanao, to P5,958 in the National Capital Region.

To recall, Batas Kasambahay and its IRR prohibit the employment of domestic workers below 15 years of age. The same law mandates both a written employment contract and social welfare benefits for the kasambahay. A kasambahay is also entitled to at least 24-consecutive hours of rest in a week. Currently, the minimum wage for a kasambahay is P5,000 in NCR and ranges from P2,000 to P5,000 in other regions.

To help address these problems and curtail further violations, on Oct. 27, 2020, the DoLE enacted Department Order No. 217, s. 2020 (“DoLE DO No. 217”), otherwise known as “The Rules and Regulations Governing Recruitment and Placement of Domestic Workers by Private Employment Agencies for Local Employment,” which was published on Dec. 23, 2020, and which took effect on Jan. 7, 2021, or 15 days from the date of its publication.

DoLE DO No. 217 was enacted in line with the State’s policy to regulate and recognize the participation of the private sector in the recruitment and placement of workers for local employment through a registration and licensing system, and to recognize the need to protect the rights of the kasambahay against abuse, harassment, violence, economic exploitation, and performance of work that is hazardous to their physical and mental health. It aims to regulate and monitor Private Employment Agencies (PEAs) to ensure compliance with the pertinent provision of the Labor Code of the Philippines, including other related laws, rules and regulations, such as Batas Kasambahay and its IRR.

Despite the fact that the Batas Kasambahay has been in effect for seven years, gaps in its implementation still exist, mainly due to the challenges posed by the constitutionally guaranteed privacy of homes. The labor inspection system of the DoLE is ineffective to boost compliance with the law since a warrant would be required to inspect households where there are kasambahay employed.

The responsibilities of the PEA under the recently enacted DoLE DO No. 217 include, among others: (a) ensuring that the employment agreement between the kasambahay and the employer stipulates the terms and conditions of employment and all the benefits under the law, (b) providing a Pre-Employment Orientation briefing to the kasambahay and the employer about their rights and responsibilities, and (c) keeping copies of employment contracts and agreements pertaining to recruited kasambahay.

The same Department Order mandates the PEAs to assist the kasambahay in filing his/her complaints or grievances against the employers, and to cooperate with government agencies in rescue operations involving abused or exploited kasambahay.

With the enactment of DoLE DO No. 217, it is expected that measures to address such gaps in the implementation of Batas Kasambahay will be finally identified, and information on the rights of kasambahay and obligations of employers will be widely disseminated. The responsibility mandated upon the PEA to assist domestic workers in filing their complaints and grievances will essentially put another concerned party in the implementation of the law other than the employer.

Further, the responsibility of the PEA to conduct Pre-Employment Orientation briefings with both the kasambahay and the employer would inform both parties of their respective rights and obligations even prior to entering into a contract of employment.

As highlighted in the survey conducted by the DoLE-PSA, only 41% of kasambahay are aware of Batas Kasambahay, indicating a low level of awareness of their rights and benefits. To be sure, it is insufficient that such rules and regulations exist, they must also be effectively enforced and implemented. And raising awareness of Batas Kasambahay and other related rules and regulations is the first step towards improving policy and program development and in strengthening compliance with the law.

The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes only and is not offered as and does not constitute legal advice or legal opinion.

Constance Marie C. Lim is an Associate of the Angara Abello Concepcion Regala & Cruz Law Offices in Cebu (ACCRA Cebu).

cclim@accralaw.com