Opinion - Kasambahay Law

Malaya - The Kasambahay bill has already been passed by the Senate and the House of Representatives and is only awaiting President Aquino’s signature for it  to take effect.
Voting 176 in favor and 0 against, the chamber unanimously approved House Bill 6144 which will also carry out the commitment made by the Philippine government in setting acceptable standards for the employment of household helpers that will include cooks, garderners, laundry person, and nursemaids.
“It’s a landmark legislation of the 15th Congress,” said  Ejercito,
The bill also seeks to comply with the international standards adopted by the International Labor Organization’s (ILO) for the protection of household helpers.
The Senate passed its version of the Kasambahay bill as early as December 2010. There were actually several bills that the House   consolidated into one bill that was considered by the Bicameral Conference Committee for the final version of the approved Kasambahay Law.
Thus, this is one piece of legislation with many fathers, including  Reps. Emil Ong (NUP, Northern Samar); JV Ejercito (PMP, San Juan City); Juan Edgardo Angara (LDP, Aurora); Alfredo Benitez (LP, Negros Occidental); Catalina Bagasina (ALE Party-list); Bernadette Herrera Dy (Ang Bagong Henerasyon), and Kaka Bag-ao (Akbayan),
At least 100 other solons co-authored the measure that went to the BiCam.
The Kasambahay Act alleviates the plight of many household workers or kasambahays who are among the most disadvantaged in Philippine society. After all, there’s that saying that those who have less in life should have more in law.
The Kasambahay law is keenly awaited by household workers. Said Rep. JV Ejercito, the son of former President Joseph Estrada and a leading senatorial candidate in May of the United Nationalist Alliance or UNA on the passage of the bill late last year, after being passed by the Senate in late 2010:
“I commend my fellow legislators who make up the membership of the House-Senate bicameral committee for coming up with a final version of the Kasambahay Bill. Now household helps can look forward to something for Christmas.
“As everyone knows I fought for a higher minimum salary for household helps, but I must go along with the decision reached by the committee, which pegged the amount at P2,500 in Metro Manila, P2,000 in chartered cities and first-class municipalities, and P1,500 in the rest of the country.
“I have always maintained that more than the economic benefits, household helps must be assured of protection against abusive employers. I am thus glad that the bicameral committee has kept the provision that prescribes stiff penalties for the abuse and maltreatment of these most vulnerable members of the labor force.
“As I observed in various forums, the majority of household helps have very little formal education. So I note with great satisfaction that the  bicameral committee has found the wisdom to keep another portion of the bill intact, one that requires employers to allow their household helpers to complete their basic education and, if they so desire, pursue technical or vocational training as well.
“I suppose the employers and their wards should be able to reach a mutually acceptable work schedule.
“Household helps are not slaves. So again I am glad that under the law—once the bill is enacted— these men and women who clean our house, do the laundry, and take care of our children are afforded at least eight hours of rest every day and a day off every week.
 “I have no doubt that  President Aquino will soon sign this bill because of his compassionate character. I am sure he realizes the importance of the Kasambahay measure to lowly household helpers, some of whom are being maltreated by abusive employers.”
Well, the Kasambahay law may no longer be a Christmas gift as JV had hoped it would be, but it can still be a pre-Valentine Day’s gift by the President, the House of Representatives and the Senate to kasambahays.
Under the measure which JV pushed hard as vice chairman of the House Labor Committee, the minimum salary of a household helper is pegged at P2,500 in Metro Manila, P2,000 in chartered cities and first-class municipalities, and P1,500 in the rest of the country.
Apart from monetary compensation, which includes a 13th month pay, the measure also mandates employers to enroll their househelpers in Social Security System, Philhealth, and Pag-ibig Fund and to pay part of their monthly contribution.
Also, household helpers would be given at least eight hours rest every day and a day off  one day a week.

***

We had a Kasambahay  who saw all of us ten children come into this world. Her name was Fausta Baje but all of us called her “Inay.” She would scold us, censure us and would order  us around; but, through it all, we knew that she loved us all, maybe not quite equally (since she had her favorites) but at least more than she cared for herself.
When she died, we buried her at Loyola Memorial Park in Marikina. When people inquired as to who was being buried by all of these mourners all dressed up in their finest, they seemed shocked when we told them who was the object of our tears.
But, for her lifetime of service to us all, what surprised us was why others would find our love for our “Inay” so strange.

Gurong nagpakasal sa estudyante, sinisante

KGG. na Atty. Acosta,

Ako po ay isang dating guro sa high school sa isang pribadong eskwelahan. Niligawan po ako ng isang estudyanteng 18 taong gulang at sa kalaunan ay nahulog ang aking loob sa kanya.

Hindi po mahalaga na 10 taon ang pagitan ng aming mga edad dahil nagmamahalan po kami. Nagpakasal po kami noong isang taon.

Noong nalaman po ng management ng eskwelahan ang aming pagpapakasal, tinanggal po ako bilang isang guro dahil daw po sa immoral conduct kaya nawalan na raw sila ng trust and confidence sa akin bilang isang guro.

Wala naman po kaming masamang ginagawa ng aking asawa kahit noong kami ay magkasintahan pa lamang. Nagmamahalan po kami ng wagas at totoo. Ano pong legal na hakbang ang maipapayo ninyo sa akin?

Lubos na gumagalang,
Lavinia


Dear Lavinia,

Ang Labor Code of the Philippines ang batas na angkop sa inyong sitwasyon. Ayon sa Artikulo 282 ng nasabing batas:

“An employer may terminate an employment for any of the following causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

(e) Other causes analogous to the foregoing.”

Bagama’t isa sa mga rason ang breach of trust upang ma-terminate ang isang empleyado, maaari pa rin kayong maghain ng isang illegal dismissal case laban sa inyong dating employer.

Ang inyong dating employer ang siyang may obligasyon upang patunayan na ang mga akto bago pa naganap ang inyong pagpapakasal ay maituturing na immoral conduct at isang dahilan upang sila ay mawalan ng trust and confidence sa inyo.

Nagkaroon ng diskusyon ang Korte Suprema kung ano ang ibig sabihin ng immoral conduct sa kasong Rene Puse v. Ligaya Puse (G.R. No. 183678, March 15, 2010) na sinipi mula sa kasong Santos, Jr. v. NLRC (G.R. No. 115795, March 6, 1998):

“On the outset, it must be stressed that to constitute immorality, the circumstances of each particular case must be holistically considered and evaluated in light of the prevailing norms of conduct and applicable laws. American jurisprudence has defined immorality as a course of conduct which offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and to elevate, x x x Thus, in petitioner’s case, the gravity and seriousness of the charges against him stem from his being a married man and at the same time a teacher. Accordingly, teachers must abide by a standard of personal conduct which not only proscribes the commission of immoral acts, but also prohibits behaviour creating a suspicion of immorality because of the harmful impression it might have on the students.  Likewise, they must observe a high standard of integrity and honesty.

From the foregoing, it seems obvious that when a teacher engages in extra-marital relationship, especially when the parties are both married, such behaviour amounts to immorality, justifying his termination from employment.”

Sa inyong kaso hindi maituturing na immoral conduct ang inyong pagpapakasal, sapagkat inilahad na ng ating Korte Suprema sa kasong Evelyn Chua-Qua v. Hon. Clave (G.R. No. 49549, 30 August 1990):

“After a painstaking perusal of the records, we are of the considered view that the determination of the legality of the dismissal hinges on the issue of whether or not there is substantial evidence to prove that the antecedent facts which culminated in the marriage between petitioner and her student constitute immorality and/or grave misconduct. To constitute immorality, the circumstances of each particular case must be holistically considered and evaluated in the light of prevailing norms of conduct and the applicable law. Contrary to what petitioner had insisted on from the very start, what is before us is a factual question, the resolution of which is better left to the trier of facts.
With the finding that there is no substantial evidence of the imputed immoral acts, it follows that the alleged violation of the Code of Ethics governing school teachers would have no basis. Private respondent utterly failed to show that petitioner took advantage of her position to court her student. If the two eventually fell in love, despite the disparity in their ages and academic levels, this only lends substance to the truism that the heart has reasons of its own which reason does not know. But, definitely, yielding to this gentle and universal emotion is not to be so casually equated with immorality. The deviation of the circumstances of their marriage from the usual societal pattern cannot be considered as a defiance of contemporary social mores.” (Binigyan ng diin).

Samakatuwid, ang legalidad ng inyong pagkatanggal ay nakabase sa ebidensya na maaaring isumite ng inyong dating employer at sa pagpapahalaga ng hukuman o korte na didinig sa inyong kaso.

Nawa ay nasagot namin ang inyong mga katanungan.

Maraming salamat po sa inyong patuloy na pagtitiwala.

Ang inyo pong lingkod-bayan,

PERSIDA V. RUEDA-ACOSTA
Punong Manananggol Pambayan

Paunawa: Manood ng “Public Atorni: Asunto o Areglo” mula Lunes hanggang Biyernes, 7 ng gabi, sa Aksyon TV. Makinig sa “Abogado ng Bayan” sa Radyo ng Bayan, DZRB, 738 khz AM band, 6:30 a.m. mula Lunes hanggang Biyernes.

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Maaaring isumbong kay Chief Acosta ang sinumang public attorney o empleyado ng PAO na manghihingi o tatanggap ng salapi mula sa kliyente ng PAO sa address na ito: 5th Floor, DOJ Agencies Building, NIA Road corner East Avenue, Diliman, Quezon City, 1104.

Liquidation: Who has preference - Creditor or Worker forUnpaid Wages?

Liquidation; preference for unpaid wages. As to petitioner’s argument on the right of first preference as regards unpaid wages, the Court has elucidated in the case of Development Bank of the Philippines v. NLRC that a distinction should be made between a preference of credit and a lien. A preference applies only to claims which do not attach to specific properties. A lien creates a charge on a particular property. The right of first preference as regards unpaid wages recognized by Article 110 of the Labor Code, does not constitute a lien on the property of the insolvent debtor in favor of workers. It is but a preference of credit in their favor, a preference in application. It is a method adopted to determine and specify the order in which credits should be paid in the final distribution of the proceeds of the insolvent’s assets. It is a right to a first preference in the discharge of the funds of the judgment debtor. Consequently, the right of first preference for unpaid wages may not be invoked in this case to nullify the foreclosure sales conducted pursuant to PNB ‘s right as a secured creditor to enforce its lien on specific properties of its debtor, ARCAM. Manuel D. Yngson, Jr., (in his capacity as the Liquidator of ARCAM & Co., Inc.) vs. Philippine National Bank, G.R. No. 171132, August 15, 2012.

http://lexoterica.wordpress.com/2012/09/03/august-2012-philippine-supreme-court-decisions-on-commercial-law/

Employers and the Data Privacy Act

Businessworld - REPUBLIC Act No. 10173 (An Act Protecting Individual Personal Information in Information and Communications Systems in the Government and the Private Sector, Creating for this Purpose a National Privacy Commission, and for Other Purposes), or the Data Privacy Act, was enacted into law last 15 August 2012.

It seeks to strike a balance between the protection of the fundamental human right to privacy of communication and the free flow of information to promote innovation and growth. The law, principally based on the European Union Directive 95/46 also known as the Data Protection Directive, brings the Philippines closer to international standards of privacy protection, and, by virtue thereof, aims to attract foreign investors in the booming information technology and business process outsourcing industry.

The law imposes a set of obligations upon any person or entity (referred to as the “personal information controller”) that controls the collection, holding, recording, storing, updating, disposal, processing or use of the personal information of an individual (referred to as the “data subject”). These obligations include, among others, informing data subjects that their personal information is being processed, providing them with reasonable access to personal information under the control of the personal information controller, immediately correcting personal information found to be inaccurate or erroneous, and indemnifying data subjects for any damages.

The legal definition of “personal information controller” under the law is broad enough to cover employers who, in the normal course of their human resources operations, must necessarily collect and process the personal information of their employees, and even of job applicants.

Hence, employers are required to observe the obligations set forth in the Data Privacy Act, in addition to existing labor laws.

Some of the pressing issues that employers may encounter in the implementation of the law are:

1) Employee access to company records

One of the rights afforded to employees as data subjects is reasonable access, upon demand, to the contents of their personal information under the control of their employer, the sources from and the manner by which information is obtained, and other data relating to how the employer has been processing their personal information. This obligation may be difficult and costly to implement especially for employers who do not normally maintain an organized employee information database. On the other hand, employers who maintain records in the form of 201 files may be hesitant to provide such information since this is not normally made available to employees. The 201 files may also include complaints against the subject employee, performance evaluations from their superiors, results of administrative investigations, and other confidential information not meant to be accessed by the subject employee.

2) Data privacy rights of the employee under investigation

A data subject cannot invoke his access right under the law when the personal information being processed is for the purpose of investigation in relation to any criminal, administrative or tax liabilities against him. The law is silent, however, whether employee disciplinary investigations may be classified as one of the exceptions that can fall under administrative liabilities. Nonetheless, in the absence of any express exception to the right, the same shall prevail.

3) Extraterritorial application of the law

The law provides an extraterritorial application in instances wherein the personal information involved belongs to a Philippine citizen or resident. This means that the data subject may enforce his rights even against entities based overseas. This may present challenges to some industries, such as the IT-BPO industry, wherein overseas companies require local BPO companies to provide personal information on their employees. In such cases, these overseas companies may technically be classified by the law as personal information controllers and are hence bound by the obligations set forth under the law.

4) Limitations in collecting information from job applicants

Sensitive personal information is a species of personal information clearly defined and enumerated under the law. It includes personal information relating to the race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations, health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person.

It also includes personal information issued by government agencies peculiar to individuals such as social security numbers.

The law imposes more stringent requirements in the collection, processing, and retention of such sensitive personal information. While it is conventional for potential employers to collect and process such sensitive personal information of the applicants, such as school records and NBI clearance, they are only permitted by the law to request and collect such information that are relevant and not excessive for the purpose of the job application. Furthermore, due to the stringent requirements for the processing of sensitive personal information, potential employers are required to first obtain the express consent of the applicant, which must be in written, electronic, or recorded form, prior to the collection and processing of the applicant’s sensitive personal information. The restrictions in obtaining sensitive personal information may present limitations in information-gathering that will allow potential employers to make an uninhibited and informed choice in the selection process of screening applicants.

5) Disposal/retention of employees’ personal information after their resignation

The law allows a data subject to demand the withdrawal, removal, or destruction of his personal information upon substantial proof that the information is no longer necessary for the purpose for which it is collected. Hence, employers may face demands from their former employees to remove their personal information from company records upon their resignation or termination from employment. This may present problems if sometime thereafter, such former employees decide to institute an action against their employer who, having earlier deleted the records of these complainants, is put at a legal disadvantage.

6) Penalties against corporations for violating the law

The law provides that when the offender is a corporation, partnership, or any juridical person, any of its rights under the law may be suspended or revoked. This penalty provision may need further clarification in the upcoming implementing rules of the law. Note that the Data Privacy Act was enacted to protect the privacy rights of the data subject, who is defined as “an individual whose personal information is processed.” As worded, the law does not extend the same rights to juridical entities. Thus, there is an issue on what particular rights of juridical entities under the law may be suspended or revoked when they have not been granted any privacy rights by the Data Privacy Act in the first place.

The foregoing are snippets of the potential issues brought about by the new law insofar as employer-employee relationship is concerned. It is important to note, however, that the implementing rules and regulations for the law have yet to be released. We should be expecting a clearer and broader picture of the law and its effects once the rules are released. In the meantime, however, employers should carefully study the law, detect potential issues in their own workplace, and pursue preliminary measures to comply with the same.

(The author is an associate of the Angara Abello Concepcion Regala & Cruz Law Offices [ACCRALAW]. He may be contacted at Tel. No. 830-8000 or email lrsze@accralaw.com).

Worker regularity based on nature of job, not the written employment contract

Dear PAO,
I have been working in this beverage company since 2010 under one-year contract and was renewed yearly up until this year.
It is stated in one of the provisions of the contract that I’m not entitled to any benefits and privileges that regular employees get. I’m wondering if I can get a 13th month pay under Department Order 18-A, Series of 2011. Would there be any chance that I can be a regular employee since I have been with them for almost three years. Thanks. I hope you can enlighten me on this matter.
Abub

Dear Abub,
Article 280 of the Labor Code of the Philippines is enlightening with regard to who should be considered a regular employee. The said law provides that:

“Art. 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.”

It is clear from the provisions of the cited law that if the work performed is necessary and desirable to the business of the employer then the employee will be deemed as regular regardless of the stipulations to the contrary. In other words, what determines regularity is not the written employment contract, but the nature of the job (Azucena, Everyone’s Labor Code, 2010 update, citing A.M. Oreta, August 10, 1989).

Since your employment is based on a contract limited to a period of one year, you may initially be considered as a project, or contract worker. Generally, contract workers are not considered regular employees, since their services are needed only when there are projects to be undertaken (Cartagenas v. Romago Electric Co., G.R. No. 82973, September 15, 1989). Nonetheless, should the employment of the project or contract employees be extended after the end of the supposed project, the said employees can now be considered as regular employees (Azucena, Everyone’s Labor Code).

Furthermore, a project employee in a private company or entity may acquire the status of a regular employee when:

a. There is a continuous rehiring of project employees even after the end of the project;

b. The tasks performed by the alleged project employee are vital, necessary and indispensable to the usual business or trade of the employer (Ibid).

Thus, considering that you have been re-hired several times already, and if determined that you perform necessary and indispensable tasks to your employer, your status may become that of a regular employee, and thus, entitled to all the rights and privileges as provided by law.

With regard to Department Order (DO) 18-A, Series of 2011 that you mentioned, note that this department order applies to employees engaged in a contracting and subcontracting arrangement. Sec. 8 of DO 18-A, Series of 2011 specifically provides for the rights and privileges that such employees are entitled to, which includes:

“Sec. 8. Rights of contractor’s employee. All contractor’s employees, whether deployed or assigned as reliever, seasonal, week-ender, temporary, or promo jobbers, shall be entitled to all the rights and privileges as provided for in the Labor Code, as amended, to include the following:

a. xxx

b. Labor standards such as but not limited to service incentive leave, rest days, overtime pay, holiday pay, 13th month pay and separation pay as may be provided in the Service Agreement or under the Labor Code. xxx”

Thus, should your employment be based on such arrangement, you are still entitled to a 13th month pay as clearly provided by law.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

SSS Law: Death and funeral benefits

Deceased SSS member’s family gets death and funeral benefits

Manila Times (January 15, 2013)

Dear PAO,
What benefits may the family of a deceased SSS member get?
Espy


Dear Espy,
The Social Security System (SSS) was enacted primarily with the end of promoting social justice and providing protection to its members and their beneficiaries against the hazards of disability, sickness, maternity, old age, death and other contingencies resulting in loss of income or financial burden (Section 2, Republic Act [RA] 8282). To ensure that these purposes are served, the law requires compulsory membership or coverage upon all employees not over the age of 60, as well as upon self-employed persons as may be determined by the Social Security Commission (Sec. 9 and 9-A, RA 8282).

When a member of SSS dies, his beneficiaries will be given death benefits in accordance with Sec. 13 of RA 8282, to wit:

“SECTION 13. Death Benefits. — Upon the death of a member who has paid at least 36 monthly contributions prior to the semester of death, his primary beneficiaries shall be entitled to the monthly pension: Provided, That if he has no primary beneficiaries, his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to 36 times the monthly pension. If he has not paid the required 36 monthly contributions, his primary or secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the monthly pension times the number of monthly contributions paid to the SSS, or 12 times the monthly pension, whichever is higher.”

The beneficiaries referred to in the preceding paragraph are the dependent spouse until he or she remarries, the dependent legitimate, legitimated, or legally adopted and illegitimate children of the deceased member, who shall be the primary beneficiaries of the member: Provided, That the dependent illegitimate children shall be entitled to 50 percent of the share of the legitimate, legitimated or legally adopted children: Provided, further, that in the absence of the dependent legitimate, legitimated or legally adopted children of the member, his/her dependent illegitimate children shall be entitled to 100 percent of the benefits. In the absence of the primary beneficiaries, the dependent parents shall be the secondary beneficiaries of the member. In the absence of the foregoing, any other person designated by the member as his/her secondary beneficiary shall receive the benefits due (Sec. 8[k], RA 8282). If no one qualifies as beneficiary, the death benefits shall be paid to the deceased member’s legal heirs in accordance with the law on succession (Sec. 15, ibid.).

In addition to the death benefits, funeral benefit shall also be given to help defray the cost of funeral expenses upon the death of a member, including, permanently totally disabled member or retiree (Sec. 13-B, RA 8282). This funeral grant in the amount of P20,000 shall be given to whoever pays the burial expenses of the deceased member, or pensioner ( https://www.sss.gov.ph/sss/).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net