Illustration by Steph Bravo

1. When did the Batas Kasambahay or Republic Act No. 10361, and its
implementing rules and regulations (IRR) come into effect?
RA 10361 or Batas Kasambahay was published on April 15 in the Official
Gazette. By explicit provision of the Act, it came into full force and effect 15
days after its complete publication in the Official Gazette.
Its implementing rules and regulations (IRR) were promulgated on May 9. The
IRR was published in The Manila Times and The Philippine Star on May 19;
hence, by its express provision, the IRR took effect on June 3.
1. What is the significance of the law?
RA 10361 is highly significant because it underscores the need to afford
special protection to domestic workers or kasambahay, the sector of workers,
which in turn, affords household employers who are workers themselves the
opportunity to focus on work elsewhere for their livelihood.
Thus, the law translates into very concrete terms the constitutional mandate to
afford full protection to labor wherever situated, regardless of status and
nature of position. The need for full protection is more pronounced when the
concerned worker renders services in the household wherein practically no
monitoring by concerned government agencies can be done because the
work of the kasambahay is hidden from view.
Moreover, RA 10361 serves as our countrys compliance with the commitment
it made on Sept. 5, 2012 to implement all the obligations provided in the
International Labor Organizations Convention No. 189 (2011), concerning
decent work for domestic labor.
1. Is RA 10361 a mere consolidation of the provisions in other laws for the
protection of domestic workers? Or does the new law provide more
protection for a kasambahay?
While considering the pertinent provisions in the Civil Code and the Labor
Code, RA 10361 grants additional significant rights and benefits to the
kasambahay. These are the 13th month pay, Pag-Ibig membership and
additional pay for work beyond the agreed hours of work, not to mention the
provisions which categorically declare as unlawful a number of prohibited
acts.
1. Has the government widely disseminated the law and its IRR to the
public?
Reports have it that the draft IRR of the Batas Kasambahay was posted online
to help raise awareness and solicit inputs faster. Moreover, the labor secretary
directed regional offices of the Department of
Labor and Employment (DOLE) to conduct town-hall type consultations in
Luzon, the Visayas and Mindanao during the 90-day period within which
DOLE was to come up with the IRR.
Whether or not such public consultations suffice to widely disseminate the law
and its IRR remains to be seen. This can be manifested in a situation where
an overwhelming majority of employers will comply not only with the
registration/reportorial requirements but also with the grant of benefits to the
kasambahay pursuant to RA 10361.
1. What are the obligations of the employer to a kasambahay under the
law?
Under RA 10361, the household employer has the following obligations:
To treat the kasambahay with dignity, not subject him/her to any kind of abuse
or inflict any form of physical violence or harassment;
To provide the basic necessities of the kasambahayat least three adequate
meals a day and humane sleeping arrangements that ensure safety;
To provide appropriate rest and assistance in case of illness and injuries
sustained during the service without loss of benefits.
. To respect the privacy of the kasambahayextends to all forms of
communication and personal effects;
To grant the kasambahay access to outside communication during free time,
or even during work time in case of an emergency;
To afford the kasambahay the opportunity to finish basic education and to
allow access to higher education or training;
To register all the kasambahay in the Registry of Domestic Workers in the
barangay where the employer resides;
To comply with the terms and conditions of employment, such as:
Health and safety
Daily rest period
Weekly rest period
Minimum wage (P2,500 in Metro Manila; P2,000 in chartered cities and
1st class towns; and P1,500 in other towns)
13th month pay
Leave benefits
Social and other benefits
1. Does the law provide for the centralized registration of kasambahay
nationwide?
While RA 10361 does not explicitly provide for such centralized registration of
domestic workers, Rule IV, Sec. 9 of the IRR mandates the SSS, Pag-Ibig and
PhilHealth to develop a unified system of registration and enrollment within six
months from the IRR promulgation.
Moreover, Rule IX, Sec. 2 of the IRR requires the punong barangay, together
with SSS, Pag-Ibig and PhilHealth representatives to conduct a common
registration of all kasambahay nationwide.
1. Are employers themselves required to register a kasambahay in the
barangay office?
Yes, Sec. 17 of RA 10361 makes it the duty of employers to register all
kasambahay under their employment in the Registry of Domestic Workers in
the barangay where the employer resides.
1. Are employers required to enroll a kasambahay with the SSS,
PhilHealth and Pag-Ibig?
Yes. Sec. 30 of RA 10361 provides that the kasambahay who has rendered
at least one month of service shall be covered by the SSS, PhilHealth and
Pag-Ibig and shall be entitled to all the benefits in accordance with law. This
means that the employer has to register both himself and the kasambahay in
these three agencies.
1. How long does it take to register a kasambahay with these agencies
(based on your experience and anecdotal evidence)?
Currently, registration with the punong barangay will not take five minutes as it
merely involves writing down the employers and the kasambahays names
and address(es) in the barangay record book without any prescribed form.
Employer registration with Pag-Ibig is systematic and does not take long. The
kasambahay can even register online.
SSS registration can, however, entail almost one whole day. In my case, I left
the house at 8:30 a.m. Upon arriving at the SSS main office on East Avenue
in Quezon City, I was almost discouraged to go through the long queues, not
to mention that while the guidelines specified two copies for certain forms, the
SSS staff required me to accomplish a third copy of the same. I was done by
2 p.m. Note that I got the forms and accomplished the same a day earlier.
Also, note that registration with the SSS, PhilHealth and Pag-Ibig can be
facilitated by downloading the forms online and accomplishing the same
before going for the queue.
10.When should an employer register a kasambahay with the three agencies?
Is there a deadline?
As a rule, the kasambahay should be registered with the SSS, PhilHealth and
Pag-Ibig after one month of service.
There is no deadline for registration. In fact, the IRR clarifies in Rule IX, Sec. 3
that the kasambahay desk in the barangay hall should accommodate
continuous registration by the employers.
11.Has the government put up a one-stop shop for the registration of
kasambahay with the SSS, PhilHealth and Pag-Ibig?
As they say, wish ko lang. The IRR itself allows the SSS, Pag-Ibig and
PhilHealth a period of six months from the IRR promulgation to develop a
unified system of registration and enrollment.
12.What are the preemployment requirements?
Even before the execution of the employment contract, the employer may
require the kasambahay to submit, the following:
Medical certificate or a health certificate issued by a local government
health officer
Barangay and police clearance
NBI clearance
Duly authenticated birth certificate or any other document showing the
kasambahays age, such as voters ID card, baptismal record or
passport (Art. III, Sec. 12)
13.Who will shoulder the cost of these preemployment requirements?
The law explicitly states that the costs of the foregoing preemployment
documents shall be borne by the prospective employer or agency which
facilitated the kasambahays employment.
14.For kasambahay employed for at least one year, are employers required to
pay the premiums for or contributions to the SSS, PhilHealth and Pag-Ibig
retroactively?
As regards the SSS and PhilHealth, the pertinent laws required registration as
early as 1993 and 1995, respectively. Unless Congress will act to amend
such existing laws, retroactive application of RA 10361 cannot be avoided.
As regards Pag-Ibig registration, the requirement was introduced in RA
10361. Thus, there should be no dispute that it should be applied only
prospectively.
15.What are the penalties for employers for not complying with the
new law?
The new law provides that any violation of its provisions which are declared
unlawful shall be penalized with a fine of not less than P10,000 but not more
than P40,000.
The same is without prejudice to the filing of an appropriate civil or criminal
action by the aggrieved party. For instance, an abused kasambahay who
sustained physical injuries may file a complaint for serious or less serious
physical injuries before the appropriate prosecutors office/court.
Since the new law also requires registration with the SSS, PhilHealth and
Pag-Ibig, the existing laws in this regard must be applied. For instance, under
the Revised Social Security Law (RA 8282 of 1997), failure or refusal to
comply with the provisions of the law shall be punished by a fine of not less
than P5,000 and not more than P20,000 or imprisonment of not less than 6
years and 1 day, and not more than 12 years, or both, at the discretion of the
court.
16.What are the strengths and weakness of the kasambahay law in
terms of its enforceability?
Strengths In time, especially so when the unified registration system and the
barangay kasambahay master list are completed within six months from the
IRR issuance, the government should be able to fully comply with its duty to
protect the rights and promote the welfare of this very disadvantaged sector of
household workers. For instance, a standard operating procedure for rescue
and rehabilitation in cooperation with the Department of Social Welfare and
Development (DSWD), Department of the Interior and Local Government
(DILG), DOLE will be developed for the abused kasambahay.
The visitorial and enforcement powers of the labor secretary are in place.
Enforcement involves all pillars of justicecitizenry, local government unit,
police, prosecution/judiciary, jail system and concerned departments and
other agencies of the government.
Weaknesses
At present the processes that the employer must undergo to register are so
tedious. Unless the employer has online access and is IT savvy, he would
have to spend a lot of precious time queuing just to secure the prescribed
forms.
Considering also the fact that most kasambahay belong to the poorest of the
poor and hence, unable to finish even elementary education, they are in no
position to determine whether or not there is strict employer compliance with
the legal requirements.
The added financial burden on the employer which amounts to a total
minimum of P689 (SSS, PhilHealth and Pag-Ibig), if the kasambahays pay is
less than P5,000, not to mention the problem of retroactivity in SSS premium
payments and its huge financial implications on household employers who are
ordinary wage earners themselves, may encourage them to circumvent the
law.
They may resort to the exceptions provided for in the law. For instance,
children under foster family arrangement may be initially enrolled, only to be
forced to drop out of school after sometime.
The huge number of employers and kasambahay in our country will entail not
only huge costs for the government but also difficulty in monitoring employer
compliance.
17.Should the law be amended?
Yes. Congress must, however, look for guidance from whatever experiences
may be drawn from the implementation of the law within the next year.
In time, with the inputs of all the stakeholderskasambahay and household
employers, concerned agencies of the government (DOLE, DILG [in
particular, the punong barangay], DSWD, Philippine National Police, SSS,
PhilHealth, Pag-Ibig plus the Department of Justice and the judiciary)gaps
in the law may be addressed. For instance, while Sec. 11 regarding
employment contract specifies, as one of the minimum terms and conditions
of employmenthours of work and proportionate additional paymentthere
is nothing in RA 10361 which specifies the normal hours of work of the
kasambahay upon which to reckon such proportionate additional payment.
In simple words, household employers are now so obliged to pay overtime
compensation with no clear basis.
In this regard, one may suggest the application of the pertinent provision of
the Civil Code which, under Sec. 44, remains in force and effect if not
inconsistent with the provisions of RA No. 10361. In Art. 1695 of the Civil
Code househelpers shall not be required to work more than 10 hours a day. x
x x.
The implication, therefore, is that 10 hours is the normal hours of work per
day. Service beyond 10 hours should be considered overtime which warrants
the payment of additional compensation.
Still, however, if one follows to its logical conclusion the provision which grants
an aggregate daily rest period of 8 hours per day (Sec. 20), he may argue
that the balance of 16 hours per day is the kasambahays working time. But
surely, it is not the intention of the law to make life so hard and burdensome to
the kasambahay.
Too long a time spent for work is not only counterproductive. With not enough
reasonable compensation, it subjects the kasambahay to discrimination,
exploitation and abuse. Such cannot be countenanced in this jurisdiction
which proscribes any form of discrimination, exploitation and abuse.
The kasambahay is guaranteed his/her human dignity and entitled to full
respect of his/her human rights under the Constitution.
Finally, the most controversial issue that bugs a huge number of household
employers is the retroactive application of SSS registration. RA 7655 (Aug.
19, 1993) requires the mandatory SSS coverage of househelpers (who are)
receiving at least P1,000.
Accordingly, the SSS requires the payment of contributions/premiums from
the start of the kasambahay employment, not from the time the new law came
into full force and effect.
With the substantial amount of contributions that will have to be paid when
complying with registration requirements, most employers belonging to the
low-income group would rather leave their employment and send home their
kasambahay.
They simply do not have the funds to comply with retroactive premium
payments. It is up to Congress to address this nagging issue. Most employers
intend to comply with the law as they also believe that it is high time for the
kasambahay to enjoy the benefits on par with regular workers, but the $64
question is: Can the ordinary employers afford it?
(Patricia R.P. Salvador Daway, whose household employs a kasambahay, is
a professor at the UP College of Law.)


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