domestic workers act

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DOMESTIC WORKERS ACT (Batas Kasambahay) Republic Act No. 10361 and its Implementing Rules and Regulation ATTY. TOMMY DE CASTRO

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A seminar on the Domestic Workers Act held on June 22, 2013 at Barangay Blue Ridge B, Quezon City and conducted by Atty. Thomas J.T. F. de Castro.

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Page 1: Domestic Workers act

DOMESTIC WORKERS ACT(Batas Kasambahay)Republic Act No. 10361 and itsImplementing Rules and Regulation

ATTY. TOMMY DE CASTRO

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Republic Act No. 10361• Labor Code Sections 141 to 152 as amended by

R.A. 7655.• New Civil Code Articles 1689 to 1699.• Signed in to law by President Benigno Aquino III

on January 18, 2013• Implementing Rules and Regulations was

approved by DOLE, DILG, DSWD, PNP, SSS, Philhealth and Pag-Ibig on May 09, 2013

• Took effect fifteen (15) days after publication, (Philippine Star; May 19, 2013 issue) or on June 04, 2013.

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Who is a Domestic Helper or Kasambahay?•Any person engaged in domestic work

within an employment relationship, whether live in or live out arrangement.

•Such as but not limited to:▫Yaya▫Cook▫Gardener▫Laundry Person

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Who is a Domestic Helper or Kasambahay?•Excluding:

▫Family Drivers;▫Service provider;▫Children who are under foster family

arrangement; and▫Any person who performs domestic work

only occasionally or sporadically and not on an occupational basis.

Source: Section 3 (e) Implementing Rules and Regulation

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Children under foster family arrangement•Refers to children who are living with a

family or household of relative/s and are provided access to education and given an allowance incidental to education, transportation, school projects and activities.

•Provided that the procedures and requirements as described by Repubic Act No. 10165 or the Foster Care Act of 2012

Source: Section 3 (a) Implementing Rules and Regulations

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Examples of persons who are doing work occasionally or sporadically:•A janitress doing irregular laundry work

for a household during rest day; •A construction worker doing casual

gardening job for a household; or•A hospital nurse or a student doing baby-

sitting job.

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Hiring of Kasambahay

•Hiring can be directly or through a Private Employment Agency duly licensed by the Department of Labor and Employment.

•The cost of hiring shall be shouldered by the Employer

•Recruitment or finders fee cannot be charged to Kasambahay

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Pre-Employment Requirements

•Medical certificate or a health certificate issued by local government health officer

•Barangay and police clearance•NBI Clearance•NSO Birth Certificate or any other

document showing age of the Kasambahay such as voter’s ID, baptismal record or passport.

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Employment Contract

•Must be in the language or dialect understood by both the Kasambahay and the employer, and shall include the followng:▫Duties and responsibilities▫Period of employment;▫Compensation;▫Authorized deductions;▫Hours of work and proportionate additional

payment;

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Employment Contract▫Rest days and allowable leaves;▫Board, lodging and medical attention;▫Agreements on deployment expenses, if

any;▫Loan agreements, if any;▫Termination of employment; and ▫Any other lawful condition agreed upon by

the parties.

▫* Form BK-1

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Rights and Privileges of Kasambahay

•Minimum wage•Daily and weekly rest periods•Service Incentive Leae•13th month pay•Freedom of disposal of wages•SSS (RA 7655, August 19, 1993), Pag-ibig

and Philhealth•Standard of treatment;•Board, lodging and medical attendance;•Right to Privacy

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Rights and Privileges of Kasambahay

•Access to outside communication;•Access to education and training;•Right to form, join, or assist labor

organization;•Right to be provided a copy of

employment contract;•Right to certificate of employment;•Right to exercise their own religious

beliefs and cultural practices.

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Minimum Wage

•P 2,500 for NCR;•P 2,000 for cities and first class

municipalities;•P 1,500 for those employed in other

municipalities.Mode of Payment•Cash only.

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Rest Period

•8 hours aggregate rest per day•24 consecutive hours per week

▫Employer and Employee to agree on the date Religious grounds shall be respected Offsetting a day of absence with a particular

rest day Waiving a particular rest day in return for an

equivalent daily rate of pay Accumulating rest days not exceeding 5 days;

or Other similar arrangements.

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Service Incentive Leave

•A Kasambahay who has rendered at least one (1) year of service is entitled to an annual five (5) days of leave with pay.

•Not convertible to cash•Cannot be carried over to the next year.

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13th Month Pay

•At least one (1) month service;•Not less than one-twelfth (1/12) of basic•Must be paid not later than December 24

of every year or upon separation of employment.

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Social Security Benefits• SSS, Pag-ibig and Philhealth;• Kasambahay must have rendered at least one

(1) month of service;• If Kasambahay is earning Five Thousand Pesos

(P 5,000.00) or more, the Kasambahay shall shoulder a proportionate share in the premium payments.

• If the Kasambahay acquires a loan and he/she is required to increase her premium payments, said increase shall be borne solely by the Kasamabhay.

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Employer Loans

•By written agreement, the Employer may extend assistance to the Kasambahay an amount not greater than six (6) months of his/her salaray;

•By written agreement, the employer may deduct the loans from the wages of the Kasambahay.

•Said deduction shall not exceed 20% of the his/her wages every month.

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Standard of Treatment•Shall be treated with respect by the employer

or any member of the household;•Should not be subject to any kind of abuse

including repeated verbal or psychologial;•Should not be inflicted with any form of

physical violence or harassment;•RPC, VAWC (RA 9262), Special Protection of

Children Against Child Abuse, Exploitation and Disctimination (RA 7610 as amended by RA 9231), Anti-trafficiking in Persons Act of 2003.

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Board, Lodging and Medical Attendance• At least three (3) adequate meals a day, taking

into consideration religious beliefs and cultural practices;

• Humane sleeping condition that respects privacy;• Appropriate rest and medical assistance in the

form of first aid medicine for illness and injuries sustained during service without loss of benefits.

• For live-out adequate rest place and sanitary facility.

• In no case shall any of the above be withheld as a punishment.

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Rights and Privileges of the Employer

•To require submission of pre-employment documents;

•To recover deployment expenses;•To demand replacement; and•To terminate employment.

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Pay Slip

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Prohibited Acts of the Employer

The Employer is prohibited from:•withholding of wages;•Interference in disposal of wages; •Debt bondage;•Deposits for loss or damage; and•Assignment to non-household work.

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Privileged Communication

•All communication and information pertaining to the employer or members of the household shall be treated as privileged and confidential.

•Except if the suit involves the employer or any member of the household in a crime against persons, property, personal liberty and security and chastity.

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Temporary work for another household•Upon mutual agreement under the following

conditions:▫There is an agreement for the task to be

performed;▫Additional payment of not less than the

minimum wage;▫Original employer shall be responsible for any

liability incurred;▫Employer not charging an amount from the

other household for the arrangement; and▫Not to exceed thirty (30) days.

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Employment of Working Children•Working children shall not be subjected

to:▫More than eight (8) hours of work a day or

forty (40) hours per week;▫Work between 10:00p.m. to 6:00a.m.; and ▫Work in hazardous or likely harmful to

health, safety or morals of children.•Entitled to minimum wage.•Unlawful to employ children below fifteen

(15) years of age.

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Post Employment

•If the term of the employment is specified in the contract, both parties may mutually agree upon notice to terminate the employment relationship before the expiration of the term.

•In case the duration is not specified in the contract, both parties may terminate the employment relationship before the expiration of the term.

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Termination – Initiated by Kasambahay The Kasambahay may terminate the employment

relationship before the expiration of the term stated in the contract for any of the following causes:

• Verbal or emotional abuse; • Inhumane treatment including physical abuse• Commission of a crime against the Kasambahay by

the employer or any member of the household;• Ay disease prejudicial to the health of the

Kasambahay, employer and members of the household; and

• Other analogous circumstances.

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Termination – Initiated by Employer

The Employer may terminate the employment relationship before the expiration of the term stated in the contract for any of the following causes:

• Misconduct or willful disobedience of a lawful order;• Gross or habitual neglect or inefficiency;• Fraud or willful breach of trust reposed by the Employer;• Commission of a crime or offense against the Employer or any

immediate member of the employer’s family;• Violation of the terms and conditions of the contract and other

standards set forth under this IRR;• Any disease prejudicial to the health of the Kasambahay, the

Employer, or members of the household; and• Other analogous causes.

Pregnancy is NOT a ground.

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Certification of Employment

•To be issued within five (5) days from request.

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Registration • Employers are mandated to register their

Kasambahays with the Barangay where their residence is situated.

• DILG through National Barangay Operations Office shall issue a cicular prescribing the standard registration form and protocols.

• There shall be a Kasambahay registration desk in the Barangay.

• There shall be a Kasamabahay master list with the Barangay which shall be submitted to the Quezon City Peso.

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Abuse

•Sexual •Psychological•Economic•Abuse of Rights

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Who may report abuse?• Kasambahay• Parents or guardian;• Ascendants, descendants or collateral relatives within

fourth (4th) degree;• Social Workers from LSWDOs or DSWD field office;• Public officers from the Women and Children Protection

Desks;• Barangay Officials;• Lawyer, counselor, therapist or healthcare provider of

Kasambahay;• Two (2) concerned responsible citizen of the city or

municipality where the abuse occurred who has personal knowledge.

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Person to whom report be made•Any official of the Barangay•Social worker from LSWDO or DSWD

Field Office•Police Officer from the Women and

Children Protection Desk; or•Any officer of the PESO.

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Settlement of Disputes• All labor related disputes shall be filed before th

DOLE Field/Provincial/Regional Office having Jurisdiction over the workplace.

• Shall go under thirty (30) day Single Entry Approach (SEnA) program to exhaust all efforts to settle.

• If the SEnA fails, a mandatory conference not exceeding thirty (30) days shall be conducted by the DOLE Field/Provincial/Regional Office.

• MR within ten (10) days;• Appeal to the Secretary of Labor within ten (10) days.• Decision of the Secretary of Labor shall be final and

executory.

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Unlawful Acts• Employment of Children below 15 years of age

(Section 16, Batas Kasambahay)• Witholding of Wages of the Kasambahay (Section

28, Batas Kasambahay)• Interference in the Disposal of Wages of the

Kasambahay (Section 27, Batas Kasambahay)• Requiring Deposits for Loss of Damage (Section

14, Batas Kasambahay)• Placing the Kasambahay under Debt Bondage

(Section 15, Batas Kasambahay)• Charging another household for temporarily

performed tasks (Section 23, Batas Kasambahay).

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Penalties•1st Offense Ten Thousand Pesos (P 10,000.00)•2nd Offense Twenty Thousand Pesos

(P 20,000.00)•3rd Offencse Thirty Thousand Pesos

(P 30,000.00)•4th and succeedig offenses Forty Thousand

Pesos (P 40,000.00)

This is without prejudice to the filing of civil/criminal cases by the aggrieved party.

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Offense against Working Children

•Will be meted a penalty of one degree higher and shall be prohibited from hiring a child.

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Thank you!