Q: Who are the kasambahay covered by R.A. 10361, otherwise known as the “Domestic Workers Act” or “Batas Kasambahay”?
A: All kasambahay engaged in domestic work, whether on a live-in or live-out arrangement, such as, but not limited to, the following:
1. General househelp 2. Nursemaid or Yaya 3. Cook
4. Gardener 5. Laundry person
6. Working children or domestic workers 15 years and above but below 18 years of age; or
7. Any person who regularly performs domestic work in one household on an occupational basis (live-out arrangement). [Sec. 3(d), R.A. 10361] Q: Who are not covered by the Batas Kasambahay? A: The following are not covered:
1. Service providers 2. Family drivers
3. Children under foster family arrangement; and 4. Any other person who performs work
occasionally or sporadically and not on an occupational and regular basis.
Q: Who are children under foster family arrangement?
A: Children under foster family arrangement are those who are living with a family or household of relative/s and are provided access to education and
given an allowance incidental to education, i.e., “baon,” transportation, school projects, and school activities; provided, that the foster family and foster care arrangements are in compliance with the procedures and requirements as prescribed by R.A. 10165 or Foster Care Act of 2012.
Q: What are the examples of persons performing work occasionally or sporadically and not on an occupational basis?
A:
1. A janitress doing irregular laundry work for a household during rest day;
2. A construction worker doing casual gardening job for a household; or
3. A hospital nurse or a student doing baby-sitting job.
Q: What is the employable age for a kasambahay? A: 15 years old and above.
Note: The employment of children 15 but below 18 years of
age may be made under the following conditions:
1. They shall not be allowed to work for more than 8 hours a day, and in no case beyond 40 hours a week; 2. They shall not be allowed to work between 10 p.m. to
6 a.m. of the following day;
3. They shall not be allowed to do hazardous work; and 4. They shall not be denied access to education and
training.
The consent of the parent/guardian of working children is required in the employment contract.
Q: Who is the employer of a kasambahay?
A: An Er is any person who engages and controls the services of a kasambahay and is party to the employment contract.
Q: Under the law, who are included in the employer’s household to be provided direct service by the kasambahay?
A: Immediate family members or other occupants of the house who are directly and regularly provided services by the kasambahay.
Q: How can an employer hire a kasambahay? A: An Er can hire directly or through private employment agencies registered with the DOLE regional offices. The Er, whether the kasambahay is hired directly or through POEA, shall shoulder the expenses for hiring. The kasambahay shall not be
charged of any cost of the recruitment, placement, or finder’s fee.
Note: The Er shall pay the expenses that are directly used
for the transfer of the kasambahay from place of origin to the place of work. An Er can be reimbursed of the deployment expenses when the kasambahay unreasonably leaves the Er within 6 months from the time he/she started work.
If a kasambahay is hired thru a Private Employment Agency, the agency is allowed to collect Service Fee from the Er.
Q: Are there pre-employment requirements? A: Yes. Before entering into an employment contract, the Er has the option to require the following from a kasambahay:
1. Medical certificate or health certificate issued by a local government health officer;
2. Barangay and police clearance; 3. NBI clearance; and
4. Duly authenticated birth certificate or, if not available, voter’s identification card, baptismal record, or passport showing the kasambahay’s age.
Note: Requirements are mandatory when the employment
of the kasambahay is facilitated through a private employment agency.
It is not a requirement for a kasambahay to be trained and certified by TESDA prior to employment. However, the kasambahay is encouraged to undergo competency assessment and be certified by TESDA. Training is not a requirement for competency assessment.
Q: Is a contract necessary before entering into an employment for domestic work?
A: Yes. The Er and the kasambahay shall enter into a contract of employment written in a language or dialect understood by them.
Note: The contract need not be notarized. The Punong
Barangay or his/her designated officer may attest to the contract and serve as witness to its execution.
Q: What should be the contents of the employment contract?
A:
1. Duties and responsibilities of the kasambahay; 2. Period of employment;
3. Compensation; 4. Authorized deductions;
5. Hours of work and proportionate additional payment;
6. Rest days and allowable leaves; 7. Board, lodging and medical attention; 8. Agreements on deployment expenses, if any; 9. Loan agreement;
10. Termination of employment; and
11. Any other lawful condition agreed upon by both parties.
Q: Is the employer required to register the kasambahay?
A: Yes. The Er is required to register the kasambahay in the Registry of Domestic Workers in the barangay where the Er resides. For this purpose, the DILG, in coordination with the DOLE, shall formulate a registration system.
Note: The registration of the kasambahay is free of charge. Q: What are the mandatory benefits of the kasambahay?
A:
1. Monthly minimum wage;
2. Daily rest period of 8 (total) hours;
3. Weekly rest period of 24 (uninterrupted) hours 4. 5 days annual service incentive leave with pay; 5. 13th month pay;
6. SSS benefit;
7. PhilHealth benefit; and 8. Pag-IBIG benefit
Q: What are the other rights and privileges of the kasambahay?
A:
1. Freedom from Er’s interference in wage disposal;
2. Standard of treatment;
3. Board, lodging, and medical attendance; 4. Right to privacy;
5. Access to outside communication; 6. Access to education and training;
7. Right to be provided a copy of the employment contract;
8. Right to Certificate of Employment;
9. Right to form, join, or assist labor organization; 10. Right to terminate employment based on just
cause; and
11. Right to exercise religious beliefs and cultural practices.
Q: What are the basic necessities of the kasambahay?
U S T A:
1. At least 3 adequate meals a day, taking into consideration the kasambahay’s religious beliefs and cultural practices;
2. Humane sleeping condition; and
3. Appropriate rest and basic medical assistance. Note: Though not part of the “basic necessities” required
to be provided by the Er to the kasambahay, shampoo, soap, toothpaste etc. may be provided gratuitously.
Q: How much is the monthly minimum wage of a kasambahay?
A: For those employed in:
1. National Capital Region – Php 2,500.00
2. Cities and 1st class municipalities – Php 2,000.00 3. Other municipalities – Php 1,500.00 (Sec. 24,
R.A. 10361)
Note: The law provides a mechanism for increasing the
minimum wage of the kasambahay. Initially, one year from 4 June 2013, the Regional Tripartite Wages and Productivity Boards (RTWPB) may review, and if proper, determine and adjust the minimum wage (Sec. 24, R.A. 10361). The RTWPB shall coordinate with TESDA on the wage review and adjustment based on the kasambahay’s competency level, in line with the thrust to professionalize the domestic service sector.
Q: In what form and when will the wage of a kasambahay be paid?
A: In cash, at least once a month.
Note: The Er shall at all times provide the kasambahay
with a copy of the pay slip every pay day containing the amount paid and all deductions made, if any. The copies of the pay slip shall be kept by the Er for a period of 3 years.
(Sec. 26, R.A. 10361)
Payment of wages by means of promissory note, voucher, coupon, token, ticket, chit, or anything other than the cash wage is prohibited.
Q: Is the kasambahay entitled to daily rest period? A: Yes. He/she is entitled to a total daily rest period of at least 8 hours.
Q: Can the employer require the kasambahay to work beyond 16 hours at any given workday in return for an equivalent hourly rate?
A: No. The eight-hour rest period must be observed. Note: Kasambahays are also entitled to at least 24
consecutive hours of rest in a week. The Er and the kasambahay may determine the schedule of the weekly
rest period. The Er shall respect the preferred weekly rest day of the kasambahay on religious grounds. (Sec. 21, R.A.
10361)
Q: When can the kasambahay avail of the five-day annual Service Incentive Leave?
A: After 1 year of service.
Note: If the kasambahay fails to avail of any of his/her
annual SIL, it shall be forfeited and cannot be converted to cash.
Q: What other agreements may the employer and the kasambahay enter into relative to the kasambahay’s weekly rest day and Service Incentive Leave?
A:
1. Offsetting a day of absence with a particular rest day;
2. Waiving a particular rest day in return for an equivalent daily rate of pay;
3. Accumulating rest days not exceeding 5 days; 4. Adding the accumulated rest days (maximum of 5
days) to the five-day SIL; and
5. Waiving a particular SIL in return for an equivalent daily rate of pay.
Q: When will a kasambahay be entitled to the 13th month pay?
A: After 1 month of service.
Q: How is the 13th month pay computed and when is it paid?
A: In computing the 13th month pay, the total basic wage received in a given calendar year shall be divided by 12. The amount derived shall be paid not later than December 24.
Q: When will a kasambahay be covered by SSS, PhilHealth, and Pag-IBIG?
A: After 1 month of service.
Q: Is the employer liable under the SSS, PhilHealth, and Pag-IBIG laws in case the kasambahay refuses membership with those agencies?
A: Membership under the SSS, PhilHealth, and Pag- IBIG is mandatory and non-negotiable.
Q: Supposing that in exchange for non-membership, the kasambahay agrees with the employer to receive
the premiums and contributions in addition to his/her salary, is this allowed?
A: No. Under the SSS, PhilHealth, and Pag-IBIG laws, the Er has the obligation to register the kasambahay and deduct and remit the required premiums and contributions. The Er shall incur certain liabilities, including criminal prosecution, if he fails or refuses to comply with his/her obligations.
Q: Who will pay the SSS premium, and PhilHealth and Pag-IBIG contributions of the kasambahay? A: GR: The Er.
XPN: If the wage of the kasambahay is Php 5,000.00 or more, the kasambahay will pay his/her share in the premiums/contributions. Q: Does the law have provisions protecting employers of kasambahay?
A: Yes. They include:
1. Prohibition against privileged information; 2. Er may require certain pre-employment
documents prior to engagement;
3. Ers are assured of quality services through DOLE- TESDA training, assessment, and certification of kasambahay;
4. Forfeiture of 15-day unpaid salary should the kasambahay leave the residence of the Er without any justifiable reason; and
5. Right to terminate the employment on justifiable grounds.
Q: Can the kasambahay terminate the contract at any time?
A: Yes, on the following grounds:
1. Verbal or emotional abuse of the kasambahay by the Er or any member of the household;
2. Inhuman treatment including physical abuse of the kasambahay by the Er or any member of the household;
3. Commission of a crime or offense against the kasambahay by the Er or any member of the household;
4. Violation by the Er of the terms and conditions of the employment contract and other standards set forth under the law;
5. Any disease prejudicial to the health of the kasambahay, the Er, or member/s of the household; and
6. Other causes analogous to the foregoing. (Sec. 33, R.A. 10361)
Q: Can the employer also terminate the contract at any time?
A: Yes, on the following grounds:
1. Misconduct or willful disobedience by the kasambahay of the lawful order of the Er in connection with the former’s work;
2. Gross or habitual neglect or inefficiency by the kasambahay in the performance of duties; 3. Fraud or willful breach of the trust reposed by
the Er on the kasambahay;
4. Commission of a crime or offense by the kasambahay against the person of the Er or any immediate member of the Er’s family;
5. Violation by the kasambahay of the terms and conditions of the employment contract and other standards set forth under the law;
6. Any disease prejudicial to the health of the kasambahay, the Er, or member/s of the household; and
7. Other causes analogous to the foregoing. (Sec. 34, R.A. 10361)
Note: Neither the domestic worker nor the Er may
terminate the contract before the expiration of the term except for grounds provided for in Secs. 33 and 34 of the Batas Kasambahay.
The domestic worker and the Er may mutually agree upon written notice to pre-terminate the contract of employment to end the employment relationship. (Sec. 32,
R.A. 10361)
Q: If the duration of the domestic service is not determined in the contract, can a kasambahay or the employer terminate the contract anytime? A: Yes. Either the Er or the kasambahay may give notice to end the working relationship 5 days before the intended date of the termination of service. Q: What are the entitlements of a kasambahay unjustly dismissed by the employer?
A:
1. Outright payment of earned wage; and
2. Indemnity benefit in the form of wage equivalent to 15 days work.
Q: What are the liabilities of a kasambahay who leaves his/her employer without justifiable reason?
U S T A:
1. Forfeiture of wage equivalent to 15 days work; and
2. Reimbursement of the deployment expenses, if the employment contract is terminated within 6 months from employment.
Q: Can the employer inspect the belongings of the kasambahay before he/she leaves the household in case of termination of employment?
A: No. However, the Er and the kasambahay can agree in their employment contract that an inspection can be made before he/she leaves the household.
Q: If there is non-payment or underpayment of wage and other labor-related concerns, where can the kasambahay seek assistance?
A: The kasambahay can go to a Kasambahay Desk Officer situated in their respective barangays or the nearest DOLE field/provincial/regional office. Q: Can the employer demand from a private employment agency the replacement of a kasambahay?
A: Yes, within 1 month from the day the kasambahay reported for work, the Er may demand a replacement based on the following cases:
1. The kasambahay is found to be suffering from an incurable or contagious disease, or mental illness as certified by a competent or government physician;
2. The kasambahay abandons the job without justifiable cause, voluntarily resigns, commits theft or any other analogous acts prejudicial to the Er or his/her family; or
3. The kasambahay is physically or mentally incapable of discharging the minimum requirements of the job, as specified in the employment contract.
Q: What will happen in case the private employment agency fails to provide a qualified replacement after one month from receipt of the employer’s request?
A: The Er shall be entitled to a refund of 75% of the fees paid to the private employment agency.
Q: What are the declared responsibilities of the private employment agency under the law?
A:
1. Ensure that the kasambahay is qualified as required by the Er;
2. Secure the best terms and conditions of employment for the kasambahay;
3. Ensure that the employment agreement between the kasambahay and the employer stipulates the terms and conditions of employment and all the benefits in accordance with the IRR;
4. Provide a pre-employment orientation briefing to the kasambahay and the Er about their rights and responsibilities in accordance with this IRR; 5. Ensure that the kasambahay is not changed or
required to pay any recruitment or placement fees;
6. Keep copies of employment contracts and agreements pertaining to recruited kasambahay which shall be made availabe during inspections or whenever required by the DOLE or local government officials;
7. Assist the kasambahay in filing his/her complaints or grievances against the Ers; 8. Cooperate with government agencies in rescue
operations involving abused or exploited kasambahay; and
9. Assume joint and solidary liability with the Er for payment of wages, wage-related and other benefits, including monthly contribution for SSS, PhilHealth, and Pag-IBIG membership.
Q: What are the specific acts declared “unlawful” under the law?
A:
1. Employment of children below 15 years of age; 2. Withholding of the kasambahay’s wages;
3. Interference in the disposal of the kasambahay’s wages;
4. Requiring kasambahay to make deposits for loss or damage;
5. Placing the kasambahay under debt bondage; and
6. Charging another household for temporarily performed tasks.
Note: Unlawful acts are punishable with an administrative
fine ranging from Php 10,000 to Php 40,000 to be imposed by the DOLE Regional Offices.
Q: What other remedies for unlawful acts are available under the law?
A: The aggrieved party may file the appropriate civil or criminal action before the regular courts.
Q: Does the law afford remedy for abused or exploited kasambahay?
A: The law mandates the conduct of immediate rescue of abused or exploited kasambahay by the municipal or city social welfare officer or a social welfare officer from DSWD, in coordination with the concerned barangay officials. The law sets out that crimes or offenses committed under the Penal Code and other criminal laws shall be filed with the regular courts.
Q: Erlinda worked as a cook, preparing the lunch and merienda of the Ees of Remington Industrial Sales Corp. She worked at the premises of the company. When Erlinda filed an illegal dismissal case, Mr. Tan, the managing director of Remington Corp., claimed that Erlinda was a domestic helper and not a regular Ee of the corporation. Mr. Tan argued that it is only when the househelper or domestic servant is assigned to certain aspects of the business of the Er that such househelper or domestic servant may be considered as such an Ee. Is Erlinda a domestic or househelper?
A: No, Erlinda is clearly not a househelper. A “househelper” or “domestic servant” under the IRR of the LC is one who is employed in the Er’s home to minister exclusively to the personal comfort and enjoyment of the Er’s family. A househelper, domestic servant or laundrywoman in a home or in a company staffhouse is different in the sense that in a corporation or a single proprietorship engaged in business or industry or any agricultural or similar pursuit, service is being rendered in the staffhouses or within the premises of the business of the Er. In such instance, they are Ees of the company or Er in the business concerned, entitled to the privileges of a regular Ee. The mere fact that the househelper or domestic servant is working within the premises of the business of the employer and in relation to or in connection with its business, as in its staffhouses for its guest or even for its officers and Ees, warrants the conclusion that such househelper or domestic servant is and should be considered a regular Ee and not a househelper. (Remington Industrial vs. Castaneda, G.R. Nos. 169295-96, Nov.20, 2006)
Q: NBC has a rest house and recreational facility in the highlands of Tagaytay City for the use of its top executives and corporate clients. The rest house staff includes a caretaker, two cooks and a laundrywoman. All of them are reported to the SSS as domestic or household Ees of the resthouse and recreational facility and not of NBC. Can NBC legally consider the caretaker, cooks and laundrywoman as
domestic Ees of the rest house and not of NBC? (2000 Bar Question)
A: No, they are not domestic Ees. They are the Ees of NBC because the rest house and recreational facility are business facilities which are for use of NBC’s top