Strengths, weaknesses of the kasambahay law
Republic Act No. 10361 or the Domestic Workers Act (also known as Batas Kasambahay) declares it a policy to adhere 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. In protecting domestic workers and recognizing their special needs to ensure safe and healthful working conditions, the law also promotes gender-sensitive measures in the formulation and implementation of policies and programs affecting the local domestic work.
Below is a part of an opinion by Daway (2013) regarding the strengths, weaknesses and areas of improvement regarding the kasambahay law.
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 justice—citizenry, 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 kasambahay’s 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.
SOURCE: Daway (2013). Questions about kasambahay law. Patricia R.P. Salvador Daway. Philippine Daily Inquirer / 11:21 PM July 13, 2013. https://opinion.inquirer.net/56453/questions-about-kasambahay-law. Patricia R.P. Salvador Daway, whose household employs a kasambahay, is a professor at the UP College of Law.
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 stakeholders—kasambahay 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 employment—"hours of work and proportionate additional payment"—there is nothing in RA 10361 which specifies the normal hours of work of the kasambahay upon which to reckon such "proportionate additional payment."
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 stakeholders—kasambahay 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 employment—"hours of work and proportionate additional payment"—there 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."
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 kasambahay’s 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?
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."
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 kasambahay’s 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?
SOURCE: Daway (2013). Questions about kasambahay law. Patricia R.P. Salvador Daway. Philippine Daily Inquirer / 11:21 PM July 13, 2013. https://opinion.inquirer.net/56453/questions-about-kasambahay-law. Patricia R.P. Salvador Daway, whose household employs a kasambahay, is a professor at the UP College of Law.
