LSSL 000 Tapalla, Gian Carlo C.

2013- 0148

KASAMBAHAY LAW: IS IT REASONABLE?

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Sometime in May 2012, the Philippines was shocked by a news story about Bonita

Baran, a domestic helper hired by spouses Analiza and Reymond Marzan, and the former being a subject of abuses by the latter to the extent of burning the latters face with a flat iron. 2The Legislative body, thinking that the Labor Code does not totally protect the domestic helper in all aspects, submitted House Bill no. 1140, and later signed by president Benigno S. Aquino III as Republic Act No. 10361 on 18 January 2013, 3and has become enforceable on 04 June 2013 after the publication of its Implementing Rules and Regulations (IRR) on 19 May 2013 in The Philippine Star and the Manila Times.

The law is believed as a landmark piece of labor and social legislation that recognizes for the first time domestic workers as similar to those in the formal sector. It strengthens respect, protection, and promotion of the rights and welfare of domestic workers or kasambahay. The Kasambahay law clearly states its intention on Section 2:

(a) The State strongly affirms labor as a primary social force and is committed to respect,

promote, protect and realize the fundamental principles and rights at work including, but not limited to, abolition of child labor, elimination of all forms of forced labor, discrimination in employment and occupation, and trafficking in persons, especially women and children; (b) The State adheres to internationally accepted working conditions for workers in general, and establishes labor standards for domestic workers in particular, towards decent employment and income, enhanced coverage of social protection, respect for human rights and strengthened social dialogue; (c) The State recognizes the need to protect the rights of domestic workers against abuse, harassment, violence, economic exploitation and performance of work that is hazardous to their physical and mental health; and 1

(d) The State, in protecting domestic workers and recognizing their special needs to ensure safe and healthful working conditions, promotes gender-sensitive measures in the formulation and implementation of policies and programs affecting the local domestic work. Reviewing the entire law, it has established several distinctions and some issues that might arise if the law is now applied.
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First subject of scrutiny is the coverage of the law. RA 10361 stated that it covers all

Domestic Workers employed and working within the country. Domestic Worker or Kasambahay Domestic worker or Kasambahay refers to any person engaged in domestic work within an employment relationship such as, but not limited to, the following: general house help, nursemaid or yaya, cook, gardener, or laundry person, but shall exclude any person who performs domestic work only occasionally or sporadically and not on an occupational basis. Also, this means the list excludes service providers, family drivers, children under foster and family arrangement; and as aforementioned, any other person who performs work occasionally or sporadically and not on an occupational and regular basis. In reality and based on observation, the common setup for a kasambahay is usually he or she is a relative or somehow related to the employer. For example a daughter of the employers cousin who lives in far flung provinces, is usually a preference for a kasambahay. Someone who is around the age of 12 14 years is very common as house help. The

enumeration has made the list exclusive and affords no protection from children who are willing to work as kasambahay at an early age; neither will they be entitled the same benefits as to those mentioned in Article III Section 16. In the face of poverty, some Filipinos who believe they can never enter a formal education will be forced by their parents or relatives to work as kasambahay. The law could have considered aiding those who are willing to work at an early age by decreasing a year from the minimum age requirement. The law also does not include a maximum age for the kasambahay. Efficiency of a kasambahay is also dependent on the age. A younger kasambahay may be quicker with household chores compared to a kasambahay who is in the age of 50s. Thus, considering the said law does not provide, anyone can apply to be a kasambahay as long as he or she is not below 15 years of age.

Second subject, Article II SEC. 6. Board, Lodging and Medical Attendance. The

employer shall provide for the basic necessities of the domestic worker to include at least three (3) adequate meals a day and humane sleeping arrangements that ensure safety. The employer shall provide appropriate rest and assistance to the domestic worker in case of illnesses and injuries sustained during service without loss of benefits. At no instance shall the employer withdraw or hold in abeyance the provision of these basic necessities as punishment or disciplinary action to the domestic worker. 7Also to add, SEC. 7. Guarantee of Privacy. Respect for the privacy of the domestic worker shall be guaranteed at all times and shall extend to all forms of communication and personal effect. Does this mean that a kasambahay should now be entitled to his or her own personal space or a room in the household where he or she is employed? In reality, hiring a kasambahay does not necessarily mean you have a lot of money, but considering that one should designate a space or a room for a kasambahay will now make it a lot expensive. Since expense has been introduced, the following subjects of scrutiny will involve the expenses that an employer should bear for the kasambahay. 8The 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. The employer shall adjust the work schedule of the domestic worker to allow such access to education or training without hampering the services required by the employer. 9The basic education is not clearly defined by the law and in the absence of which, means that the new basic education program signed by President Benigno Aquino III, or the so called K TO 12 should now be afforded by the employer. Also take note that the provision has mentioned that the employer shall adjust the work schedule of the domestic worker to allow the access of education, defeats the purpose of hiring a kasambahay. Usually, an employer hires a kasambahay to run around daily chores or for a specific purpose in the household and to have a kasambahay whom the employer also had sent to finish the basic education, would mean a time constraint for the kasambahay. It should also be taken into consideration that to enter education or schooling means assignments and exams for the kasambahay and these will cause inefficiency for the said kasambahay.
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Also take note, that it was mentioned that a domestic

worker shall be entitled to an aggregate daily rest period of eight (8) hours per day. How can a 3

kasambahay work efficiently work for an employer considering that the kasambahay needs to attend classes and has to rest for 8 hours?
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Third concern is that the law requires the employer should bear the expenses of the
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deployment of the kasambahay.

Though the law allows the employer to recover costs of

deployment from a kasambahay whose service has been terminated within 6 months, it does not afford the employer any protection from a kasambahay who would just want to be able to travel to Manila or somewhere else, and made use of his her employment to achieve the same.
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Fourth burden for the employers is the sole payment of contributions for Social

Security System (SSS), the Philippine Health Insurance Corporation (PhilHealth), and the Home Development Mutual Fund or Pag-IBIG. This was never in the consideration of the employers and now will be additional pay for the kasambahay since, such contributions for the benefits constitute an expense for the employer. Considering a kasambahay has a wage of P2, 500 monthly, premium,
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the employer has to pay P270 for SSS contribution,

P100 for PhilHealth monthly

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and P200 for PAG-IBIG. The law now imposes a full responsibility for the

government mandated benefits despite the facts the employer and a kasambahay has an unconventional employer employee relationship. These are all just figures but in reality, this makes having a kasambahay as a privilege. It is no longer affordable. Also take note that the law did not mention regarding increase of salary for the kasambahay. For example a kasambahay is earning P4500 monthly from the employer; therefore the employer is responsible for the government benefits. Should an employer decides to increase the kasambahays wage by P 500; can a kasambahay refuse the said increase? 17A salary of P5, 000 or more means the kasambahay will now make the contributions for himself or herself. Hence, the new contributions would be the following P 530 for SSS, P 125, and P 200 for PAG-IBIG, all at the expense now of the kasambahay. This means that a kasambahay who was earning P 4500 and free from contributions will now only have a take home wage of P4, 145 if the kasambahay would pay for his or her contributions.
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Fifth issue is the weekly rest period of a kasambahay. Should the kasambahay totally

leave the employers residence to enjoy the 24 hour rest period? Also, the law requires the kasambahay will be compensated if he or she opted to not to take a day off. This means additional expense for the employer. Applying this into the real world, a kasambahay who decided to stay at home for his or rest day would be burdensome for the employer for the former 4

will be consuming water, food to be exact 3 meals, and electricity for the day off. The day off will make the kasambahay a liability for a day and a liability for four (4) times in a month, as the case maybe. Also take note, that a kasambahay who has worked for at least one year are now entitled for 5 days of leave in a year. The said leaves are not convertible to cash but come to think of it, if a kasambahay wishes to stay in the household for the his or her leave, it will cost more on the part of the employer.
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Sixth issue is the 13th month pay. Again, as stated earlier it would be expensive on the

part of the employer 20and that the law requires it to be paid not later than December 24.
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Seventh concern is the Araw ng Kasambahay set on every 18th day of January. Will

this relieve all kasambahays from the days work?

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Eighth is the Access for Outside Communication, the said law grants the access during

free times. In the real world, or in an ordinary setup, is there a specific time for a free time? Basically with the said issues, as mentioned earlier, to have a kasambahay is now like a luxury and to keep someone working for you not following the standards of the said law will make one liable. However,
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the law believes that those who have less in life should have more

in law, and therefore protection for the kasambahay is vital. To weigh things out, the kasambahay law should also be praised for its protection for both the kasambahay and the employer. First, an employer may now require the following 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 voters identification card, baptismal record or passport.
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The

doctrine of management prerogative acts in spirit with this law since it allows to the employer to carefully select the kasambahays to be hired. The employer can now choose kasambahays who are free from any legal impediments or those kasambahays that are skilled, most especially to those kasambahay hired through a Private Employment Agencies, whereas the25 kasambahay must have taken the test from TESDA, to ensure productivity and quality of work.

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The kasambahay law now requires the employers to furnish a clear contract for the

kasambahay. Such contract shall contain (a) Duties and responsibilities of the domestic worker;(b) Period of employment;(c) Compensation;(d) Authorized deductions;(e) Hours of work and proportionate additional payment;(f) Rest days and allowable leaves;(g) Board, lodging and medical attention;(h) Agreements on deployment expenses, if any;(i) Loan agreement;(j) Termination of employment; and(k) Any other lawful condition agreed upon by both parties. This serves as protection for the kasambahay, in case the employer decides to terminate the service, the former can clearly establish to the courts the existence of the employer employee relationship. Also the contract now contains a period so there is a guarantee of compensation for the aggrieved kasambahay. Also [a]
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15-day salary is awarded in the form of an indemnity

due to unjust dismissal, i.e., dismissal without just cause and notice and before the lapse of the contract term. The amount is in addition to and not a substitute for the house helpers salary for the unexpired portion of the contract. The Salary for the unexpired portion of the contract, as a settled rule, is awarded as a result of the violation of her security of tenure under the contract term.
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Only for just reasons mentioned in Section 33 and 34 will be the only valid reasons to

terminate the employment of either one of them.

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Also, a kasambahay can now request for a copy of Certificate of Employment - another
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way of proving the employer employee relationship, since

the [said] employer employee

relationship is the jurisdictional foundation for a compensation claim. The

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kasambahay law also protects both the interests of the employer and the
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kasambahay by limiting the allowable amount loan not exceeding the total of the kasambahays salary for six months. This protects the employee from debt bondage likewise; it protects the

employer to be stuck with a kasambahay that cannot be terminated by reason of the excessive debts of the latter from the former.
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The additional government mandated benefits if placed on a better view is beneficial to

kasambahay for he or she may now be eligible to apply for loans subject to requisites of SSS, PHILHEALTH, or PAG- IBIG. The law also protects the employer from the said benefits since, any loans applied by the kasambahay, the payment of which will be shouldered solely by the latter.
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The kasambahay law strengthens and builds trust between the employer and

kasambahay by regulating Private Employment Agencies. It has been existing for the longest 6

time the mediation made by PEA between kasambahays and employers. Through the Kasambahay Act, PEAs should obtain licenses from and register to DOLE to ensure the protection of the kasambahay and employers. The license contains the Authority to Recruit
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and Authority to Establish a Branch prior to any recruitment and deployment activities. The PEAs are also required to register with the barangay where they recruit. For example a very well off employer can just go to any PEA of his or her choice, and the latter will make all the necessary arrangements as well as the selection process of the kasambahay to be employed.
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In case the kasambahay, in less than a month, cannot fulfil the minimum requirements of the

job, as specified in the contract, or the kasambahay is found to be suffering from incurable contagious disease, or mental illness, or the kasambahay, without justified reason, voluntarily resigns or commits theft or other acts prejudicing the employer, the beauty of the law comes in because it entitles the employer the right to have a replacement of the kasambahay from the PEA, and if the latter cannot provide after 1 month, the former is now entitled to a refund of 75% of the fees paid to the PEA.
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Another good point of the law is that it gives the kasambahay the right to exercise their

own religious beliefs and cultural practices. The law requires that the employer should respect the religion in setting days off for the kasambahay. A kasambahay and the employer may decide on any days of the week as well as long as it is a 24 hour day off.
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The kasambahay is now also protected in cases wherein he or she gets sick during

work, the employer shall provide first- aid medicines allow him or her to rest, without any loss of benefits. This is in line with cases on domestic helpers who are abused by their employers and to force them to work despite illness and sick condition. The kasambahay law, based on the history of wage controversies with the employer and the kasambahay, strengthened the protection of wages for the kasambahay. The law now requires the employers to furnish payslip for the kasambahays.
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The payslip shall contain the

amount paid in cash every pay day, and indicating all deductions made, if any. This is for future reference of the kasambahay if ever he or she is required by another employer to submit proof of employment and could also serve as a basis of salary determination. Likewise, it builds credibility on the part of the kasambahay, knowing the fact that the said kasambahay has been complying with the standards and could build confidence to the hiring employer. Also, the law prohibits the direct or indirect withholding of a kasambahays salary. With long line of cases of 7

labor injustices when it comes to pay, and the usual setup of the domestic helper with the employer, the legislative has learned to protect the kasambahay with this law. Also, just like an ordinary teleserye where kasambahays do not understand much of what they are receiving from their employers, the payslip will serve as their guide if there are any deductions made. 40The law now requires any deductions made on the salary shall be made known to the kasambahay and must be consented and made in writing.
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In any event that a kasambahay shall be subject to any forms of abuse by the

employer, the Kasambahay Law is great in providing provisions to rescue any abused kasambahay. The Law also orders Local Social and Welfare Development Offices (LSWDO) to provide temporary shelter, Counselling, Free Legal Services, Medical or Psychological Services, Livelihood and Skills Training, and other services. The effect of this law is yet to unfold and numerous complaints regarding the said standards are getting louder and louder over the social media. For some, the said law is absurd while the others say that it is about time for the protection of our beloved kasambahays. Others make a joke out of it and consider being a kasambahay as their profession. Indeed, the said law has established strong points and created a clear employer employee relationship. As mentioned in the Constitution,42 the State shall afford full protection to labor, local, and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It is undeniable that the state continues to promote social justice and equality in labor. As for my overall view, I am in favour of the kasambahay law for it gives protection to the kasambahays and it gives them the benefits of their hardwork. I personally believe that somehow will decrease domestic violence in the Philippines, since to hire a kasambahay would now be expensive. Also, complying with the standards needs more effort than before. However, the law is not perfect and violations will still arise despite the existence of the said law, but this law is a guarantee that our state is still and economic forces.
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enforcing laws that promotes equalization of the social

Footnotes:
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http://newsinfo.inquirer.net/270162/couple-who-abused-maid-end-up-behind-bars http://www.congress.gov.ph/download/basic_15/HB01140.pdf

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http://www.dole.gov.ph/files/Q%20&%20A%20on%20Batas%20Kasambahay%20(RA%20No%2010361).pdf http:// http://www.gov.ph/2013/01/18/republic-act-no-10361/ 5 http:// http://www.gov.ph/2013/01/18/republic-act-no-10361/ 6 [REPUBLIC ACT NO. 10361] AN ACT INSTITUTING POLICIES FOR THE PROTECTIONAND WELFARE OF DOMESTIC WORK 7 [REPUBLIC ACT NO. 10361] AN ACT INSTITUTING POLICIES FOR THE PROTECTIONAND WELFARE OF DOMESTIC WORK 8 SEC. 9. Right to Education and Training.[REPUBLIC ACT NO. 10361] AN ACT INSTITUTING POLICIES FOR THE PROTECTIONAND WELFARE OF DOMESTIC WORK 9 http://www.gov.ph/k-12/ 10 SEC. 20. Daily Rest Period. [REPUBLIC ACT NO. 10361] AN ACT INSTITUTING POLICIES FOR THE PROTECTIONAND WELFARE OF DOMESTIC WORK 11 (b) Deployment expenses refer to 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. Advances or loans by the domestic worker are not included in the definition of deployment expenses. 12 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. If the domestic worker is unjustly dismissed, the domestic worker shall be paid the compensation already earned plus the equivalent of fifteen (15) days work by way of indemnity. If the 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 workers employment. 13 SEC. 30. Social and Other Benefits. A domestic worker who has rendered at least one (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 domestic worker is receiving a wage of Five thousand pesos (P5,000.00) and above per month, the domestic worker shall pay the proportionate share in the premium payments or contributions, as provided by law. 14 http://www.pagibigfund.gov.ph/voluntarybenpromembership.aspx 15 http://www.philhealth.gov.ph/partners/employers/contri_tbl.html 16 http://www.pagibigfund.gov.ph/voluntarybenpromembership.aspx 17 SEC. 30. Social and Other Benefits. xxxHowever, if the domestic worker is receiving a wage of Five thousand pesos (P5,000.00) and above per month, the domestic worker shall pay the proportionate share in the premium payments or contributions, as provided by law. 18 SEC. 21. Weekly Rest Period. The domestic worker shall be entitled to at least twenty-four (24) consecutive hours of rest in a week. The employer and the domestic worker shall agree in writing on the schedule of the weekly rest day of the domestic worker: Provided, That 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 in this provision 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 five (5) days; or (d) Other similar arrangements. 19 SEC 25. Payment of Wages. xxx The domestic worker is entitled to a thirteenth month pay as provided for by law. 20 http://www.dole.gov.ph/files/Q%20&%20A%20on%20Batas%20Kasambahay%20(RA%20No%2010361).pdf 21 http://www.ffcccii.org/wp-content/uploads/2013/06/IRR-of-RA-10361.pdf 22 IRR Republic Act No. 10361 Rule IV. Section 14 23 Eastern Shipping Lines V. POEA, GR No. L 2779, October 18, 1950 24 Rural Bank of Cantilla v Julve, GR NO. 169759, February 27, 2007 25 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. 26 SEC. 11. Employment Contract. An employment contract shall be executed by and between the domestic worker and the employer before the commencement of the service in a language or dialect understood by both the domestic worker and the employer. 27 PHIL. INTEGRATED LABOR ASSISTANCE CORPORATION vs. NATIONAL LABOR RELATIONS COMMISSION AND LEONORA L. DAYAG G.R. No. 123354 November 19, 1996 28 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. 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 formers 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 employers 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. 29 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. 30 Asia Steel Corporation V. WCC, L 7636, July 27, 1955 31 IRR Republic Act No. 10361, Rule IV , Section 10. Loan Assistance. 32 (a) Debt bondage 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. 33 IRR Republic Act No. 10361, Rule IV , Section 9. Social Security Benefits 34 IRR Republic Act No. 10361, Rule III, Section 1. Regulation of Private Employment Agencies 35 [REPUBLIC ACT NO. 10361] AN ACT INSTITUTING POLICIES FOR THE PROTECTION AND WELFARE OF DOMESTIC WORK, ART VI, Sec 36. Paragraph 4, 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. 36 IRR Republic Act No. 10361, Rule III, Rule III, Section 4. Replacement of Kasambahays by PEA. 37 IRR Republic Act No. 10361 Rule IV. Section 6. Weekly Rest Period 38 IRR Republic Act No. 10361 Rule IV. Section 13, Paragraph C 39 IRR Republic Act No. 10361 Rule V. Section 2 40 SEC 25. Payment of Wages. Payment of wages shall be made on time directly to the domestic worker to whom they are due in cash at least once a month. The employer, unless allowed by the domestic worker through a written consent, shall make no deductions from the wages other than that which is mandated by law.

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IRR Republic Act No. 10361 Rule X. Section 6 Article XIII, Sec. 3 1987 Constitution 43 Calalang V. Williams GR. No, 47800, December 2, 1940

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